UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6294
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRED T. MORGAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (3:97-cr-00083-jhm-AL; 7:05-cv-00224-jct-mf)
Submitted: April 20, 2006 Decided: April 26, 2006
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed in part, and dismissed in part by unpublished per curiam
opinion.
Fred T. Morgan, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Fred Morgan, a federal prisoner, seeks to appeal the
district court’s order dismissing his motion filed pursuant to Fed.
R. Civ. P. 60(b), which the district court construed as a
successive 28 U.S.C. § 2255 (2000) motion. The order also denied
Morgan’s motion for downward departure.
The portion of the district court’s order dismissing
Morgan’s Rule 60(b) motion is 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 for claims
addressed by a district court 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. See Miller-El v. Cockrell, 537 U.S. 322, 336
(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 Morgan has not made the requisite
showing. Accordingly, we deny a certificate of appealability and
dismiss this portion of the appeal.
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Additionally, we construe Morgan’s notice of appeal and
informal brief on appeal as an application to file a second or
successive motion under 28 U.S.C. § 2255. 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 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
that would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
petitioner guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Morgan’s claims do not satisfy either of these conditions.
We therefore deny authorization to file a successive § 2255 motion.
Finally, we have reviewed the record and the district
court’s opinion and find no error in the denial of Morgan’s motion
for downward departure. Accordingly, we affirm this portion of the
district court’s order for the reasons stated by the district
court. See United States v. Morgan, Nos. 3:97-cr-00083-jhm-AL;
7:05-cv-00224-jct-mf (W.D. Va. Jan. 31, 2006). 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.
AFFIRMED IN PART;
DISMISSED IN PART
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