UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT HENRY DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:00-
cr-00424-PJM-2; 8:07-cv-02458-PJM)
Submitted: March 25, 2008 Decided: March 31, 2008
Before MOTZ, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Henry Davis, Appellant Pro Se. Mythili Raman, John Walter
Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Henry Davis seeks to appeal the district court’s
order treating his Fed. R. Civ. P. 60(b) motions as successive 28
U.S.C. § 2255 (2000) motions, and dismissing them on that basis.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. See 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. See 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 Davis
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Additionally, we construe Davis’s notice of appeal and
informal brief 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
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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. See 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Davis’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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