UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6528
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES THURMAN DAUGHTIE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:04-cr-00006-F; 7:06-cv-00127-F)
Submitted: October 3, 2007 Decided: November 13, 2007
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Thurman Daughtie, Appellant Pro Se. Banumathi Rangarajan,
Assistant United States Attorney, Richard Ernest Myers, II, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Thurman Daughtie, a federal prisoner, seeks to
appeal the district court’s orders denying his 28 U.S.C. § 2255
(2000) motion, denying his motion for a certificate of
appealability, and denying his Fed. R. Civ. P. 60(b) motion for
reconsideration. Daughtie’s February 16, 2007 notice of appeal is
untimely as to the district court’s September 26, 2006 order
denying § 2255 relief. Therefore, we are without jurisdiction to
review that order.* We conclude, however, that Daughtie’s
preliminary informal brief amounts to a timely notice of appeal as
to the court’s denial of a certificate of appealability and
Daughtie’s Rule 60(b) motion. Though we have jurisdiction to
review that order, we deny Daughtie’s motion for a certificate of
appealability and dismiss the appeal.
An appeal may not be taken from the final order in a
post-conviction proceeding unless a circuit justice or judge issues
*
Under Fed. R. App. P. 4(a)(1)(B), Daughtie was required to
file his notice of appeal of the September 26, 2006 order denying
§ 2255 relief within sixty days, unless the court extended the
appeal period under Fed. R. App. P. 4(a)(5), or reopened the appeal
period under Fed. R. App. P. 4(a)(6). Daughtie did not move to
extend the appeal period within thirty days of the expiration of
the original appeal period as required by Fed. R. App. P.
4(a)(5)(A). Nor did he move to reopen the appeal period under Rule
4(a)(6) within seven days of November 3, 2006, when he states he
received the court’s final order. Despite Daughtie’s assertion
that he was in lockdown status for much of the time following his
receipt of the district court’s order, the time accorded Daughtie
to file a notice of appeal or move to extend the appeal period is
jurisdictional. See Bowles v. Russell, U.S. , 127 S. Ct.
2360 (2007).
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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 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 Daughtie has
not made the requisite showing. It is apparent from the record
that Daughtie’s Rule 60(b) motion was, in reality, an attempt to
file a successive 28 U.S.C. § 2255 (2000) motion. Accordingly, we
deny Daughtie’s motion for a certificate of appealability as to the
denial of his Rule 60(b) motion and dismiss the appeal.
In addition, we construe Daughtie’s notice of appeal and
informal brief on appeal as an application for authorization to
file a successive § 2255 motion. See United States v. Winestock,
340 F.3d 200, 208 (4th Cir. 2003). In order to obtain
authorization to file a second § 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
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sufficient to establish that no reasonable fact finder would have
found the petitioner guilty. 28 U.S.C. § 2244(b)(3)(C) (2000).
Because Daughtie asserts neither a new rule of constitutional law
made retroactively applicable nor newly discovered evidence, we
conclude that he has not demonstrated grounds on which to grant
authorization under § 2244.
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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