UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7229
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUKEN WASHINGTON GORDON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:97-cr-00063-1; 2:05-cv-00220)
Submitted: October 31, 2006 Decided: November 7, 2006
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Juken Washington Gordon, Appellant Pro Se. Miller A. Bushong, III,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Juken Washington Gordon seeks to appeal the district
court’s order adopting the report and recommendation of the
magistrate judge, construing Gordon’s Fed. R. Civ. P. 52(b) motion
as a motion filed pursuant to 28 U.S.C. § 2255 (2000), and then
dismissing it for lack of jurisdiction as an unauthorized
successive motion. An appeal may not be taken from the final order
in a habeas corpus proceeding unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000). When, as here, a district court dismisses a § 2255 motion
solely on procedural grounds, a certificate of appealability will
not issue unless the petitioner can demonstrate both “(1) ‘that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right’ and
(2) ‘that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.’” Rose v.
Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). We have independently reviewed the
record and conclude that Gordon has not made the requisite showing.
See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Finally, in accordance with United States v. Winestock,
340 F.3d 200, 208 (4th Cir. 2003), we construe Gordon’s notice of
appeal and informal brief as a motion for authorization under 28
U.S.C. § 2244 (2000), to file a successive habeas corpus motion.
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To obtain permission to bring a second or successive § 2255 motion,
a movant must show that his claim: (1) “relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable” or (2)
relies on newly discovered facts that tend to establish the
movant’s innocence. 28 U.S.C. § 2244. We conclude that Gordon has
not satisfied either standard.
Accordingly, we deny Gordon’s implicit application for
leave to file a successive § 2255 motion, deny his motion for a
certificate of appealability, deny his motion for appointment of
counsel, 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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