UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6900
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY MAURICE LYNCH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Frederick P. Stamp, Jr.,
District Judge. (CR-00-7; CA-03-61-2)
Submitted: October 28, 2005 Decided: November 15, 2005
Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Anthony Maurice Lynch, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Maurice Lynch seeks to appeal the district
court’s orders accepting the recommendation of the magistrate judge
and denying relief on his 28 U.S.C. § 2255 motion, dismissing as
successive his Fed. R. Civ. P. 60(b) motion for reconsideration of
the court’s order denying relief on his 28 U.S.C. § 2255 (2000)
motion, and denying as moot his motion to amend his Rule 60(b)
motion.* The orders are not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.
2004). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that the
district court’s assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural rulings by
the district court are also debatable or wrong. Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
*
Because Lynch’s Rule 60(b) motion to set aside the denial of
his § 2255 motion was not filed within ten days of the district
court’s judgment as required by Fed. R. Civ. P. 59(e), the time for
appealing that order expired before he filed his notice of appeal
on May 23, 2005, and only the denial of his Rule 60(b) motion and
motion to amend was preserved for appeal. See Alston v. MCI
Communications Corp., 84 F.3d 705, 706 (4th Cir. 1996) (only a
timely Rule 59(e) motion tolls time period for filing notice of
appeal); Fed. R. App. P. 4(a)(4)(A)(iv)-(vi).
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We have independently reviewed the record and conclude that Lynch
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Additionally, we construe Lynch’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to
file a successive § 2255 motion, a prisoner must assert claims
based on either: (1) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review; or (2) newly discovered evidence, not previously
discoverable by due diligence, that would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Lynch’s claims do not satisfy either of these criteria.
See In re Vial, 115 F.3d 1192, 1198 (4th Cir. 1997) (en banc)
(holding that “‘newly discovered evidence’ exception to the bar on
second and successive § 2255 proceedings . . . applies only to
challenges to the underlying conviction; it is not available to
assert sentencing error.”). Therefore, we deny authorization to
file a successive § 2255 motion. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED
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