UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6304
BOBBY HAZEL,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:93-cr-00062-JCC; 1:97-cv-0633-AVB)
Submitted: May 22, 2008 Decided: May 30, 2008
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Bobby Hazel, Appellant Pro Se. William Neil Hammerstrom, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Hazel seeks to appeal the district court’s order
denying his motion for recusal, treating his motion for relief from
judgment as a successive 28 U.S.C. § 2255 (2000) motion, and
dismissing it on that basis. Insofar as Hazel appeals the order
denying recusal, we affirm in part for the reasons cited by the
district court. See United States v. Hazel, No. 1:97-cv-0633-AVB
(E.D. Va., Jan. 10, 2008). With respect to that part of the order
denying relief from prior orders, 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 Hazel has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal in part.
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Additionally, we construe Hazel’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
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). Hazel’s claims do not satisfy either of these criteria.
Therefore, we deny authorization to file a successive § 2255
motion.
Accordingly, we affirm in part and deny a certificate of
appealability and dismiss in part. 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.
AFFIRMED IN PART; DISMISSED IN PART
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