UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6395
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT EARL MARSHALL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:99-cr-00037-RLW; 3:01-cv-00129-RLW; 3:03-cv-
00844-RLW; 3:08-cv-00103-RLW)
Submitted: June 19, 2008 Decided: June 25, 2008
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Earl Marshall, Appellant Pro Se. Stephen Wiley Miller, S.
David Schiller, Michael Cornell Wallace, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Earl Marshall 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 Marshall has not made the requisite
showing. Accordingly, we deny his motion for a certificate of
appealability and dismiss the appeal.
Additionally, we construe Marshall’s notice of appeal and
motion for a certificate of appealability 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
- 2 -
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). Marshall’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
- 3 -