UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6206
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY LAMAR BRICE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:92-cr-00328-HMH-2)
Submitted: May 31, 2007 Decided: June 7, 2007
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Terry Lamar Brice, Appellant Pro Se. David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Lamar Brice seeks to appeal the district court’s
oral order denying a Fed. R. Civ. P. 60(b) motion to reconsider his
1993 federal convictions. This order 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
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
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. 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). We have
independently reviewed the record and conclude that Brice has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Brice’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
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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). Brice’s claims do not satisfy either of these criteria.
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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