United States v. McMillan

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-7493

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL RODNEY MCMILLAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (7:02-cr-00004-BR; 7:03-cv-00065-BR)

Submitted: February 21, 2008 Decided: February 26, 2008

Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Michael Rodney McMillan, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Michael Rodney McMillan seeks to appeal the district

court’s order treating his Fed. R. Civ. P. 60(b) motion, seeking to

reopen his 28 U.S.C. § 2255 (2000) proceeding, as a successive

§ 2255 motion, and dismissing it on that basis. The 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 McMillan has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.

Additionally, we construe McMillan’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

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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, 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). McMillan’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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