UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7854
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALVIN MCCROREY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Chief
District Judge. (CR-98-2942-JFA; CA-05-2942-JFA)
Submitted: February 16, 2006 Decided: February 23, 2006
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Calvin McCrorey, Jr., Appellant Pro Se. Marshall Prince, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Calvin McCrorey, Jr., seeks to appeal the district
court’s orders denying relief on his motion filed under Fed. R.
Civ. P. 60(b) and motion to reconsider. The district court
construed McCrorey’s Rule 60(b) motion as a motion under 28 U.S.C.
§ 2255 (2000) and dismissed the action as successive. The orders
are not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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 that the district
court’s assessment of his constitutional claims is debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. See 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 (4th Cir. 2001). We have independently
reviewed the record and conclude that McCrorey has not made the
requisite showing.
Additionally, we construe McCrorey’s notice of appeal and
informal brief on appeal as an application to file a second or
successive § 2255 motion. See 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
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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 sufficient to
establish that no reasonable fact finder would have found the
movant guilty. 28 U.S.C. §§ 2244(b)(3)(C), 2255 (2000). McCrorey’s
claim does not satisfy either of these conditions.
For these reasons, we deny a certificate of
appealability, decline to authorize McCrorey to file a successive
§ 2255 motion, and dismiss the appeal. 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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