Hazel v. United States

UNPUBLISHED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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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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