United States v. Hill

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-6058

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID HILL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:01-cr-00191-CMH-1)

Submitted: May 29, 2008 Decided: June 4, 2008

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Hill, Appellant Pro Se. Dabney P. Langhorne, OFFICE OF THE
UNITED STATES ATTORNEY, Steven Donald Mellin, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David Hill seeks to appeal the district court’s order

treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.

§ 2255 (2000) 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 Hill has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.

Additionally, we construe Hill’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

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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. 28 U.S.C. §§ 2244(b)(2), 2255

(2000). Hill’s claims do not satisfy either of these conditions.

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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