UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY EARL MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cv-00548-HFF)
Submitted: January 21, 2009 Decided: March 18, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Henry Earl Miller, Appellant Pro Se. Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Earl Miller seeks to appeal two orders entered
by the district court. The first order denied Miller’s Fed. R.
Civ. P. 60(b) motion for reconsideration of the district court’s
order denying relief on his letter that the court construed as a
28 U.S.C. § 2255 (2006) motion. The second order denied his
motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2)
(2006).
The order denying Miller’s Rule 60(b) motion 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 conclude that the district court did not err in
construing Miller’s February 2006 letter as a § 2255 motion,
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notwithstanding the delay in providing notice of that
construction pursuant to Castro v. United States, 540 U.S. 375,
383 (2003). Miller referred to the action as a § 2255 motion in
many of his pleadings, and the district court correctly assessed
that the relief he sought could only be obtained in a § 2255
proceeding. Accordingly, we deny a certificate of appealability
and dismiss the appeal.
To the extent that Miller’s Rule 60(b) motion was a
successive § 2255 motion, we construe Miller’s notice of appeal
and his informal brief filed in this court 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). Miller’s claims
do not satisfy either of these criteria. Therefore, we deny
authorization to file a successive § 2255 motion.
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Turning to Miller’s § 3582 motion, we have reviewed
the record and find no reversible error. Accordingly, we affirm
the district court’s order. In addition, we deny as meritless
Miller’s motions for recusal and reassignment, to expedite, to
instruct the district court to accept filing of § 2255 motion,
for immediate release pending appeal, to enforce the district
court’s order, for default judgment, for justice and due process
of law, and for answer to jurisdictional question. We also deny
his motion to compel a response to his request for admissions
and his motion to reverse his convictions.
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 IN PART;
AFFIRMED IN PART
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