UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8207
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE IVIN CLARK, a/k/a Bill,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:96-cr-00192-WDQ-1)
Submitted: July 15, 2009 Decided: July 22, 2009
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Dwayne Ivin Clark, Appellant Pro Se. Christine Manuelian,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Ivin Clark seeks to appeal the district court’s
order treating his Fed. R. Civ. P. 60(b) motion as a successive
28 U.S.C.A. § 2255 (West Supp. 2009) 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) (2006); 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) (2006). 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 Clark has not made the requisite
showing. Accordingly, we deny a certificate of appealability
and dismiss the appeal.
Additionally, we construe Clark’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C.A. § 2255. United States v. Winestock,
340 F.3d 200, 208 (4th Cir. 2003). In order to obtain
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authorization to file a successive § 2255 motion, a prisoner
must assert claims based on either: (1) 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; or
(2) a new rule of constitutional law, previously unavailable,
made retroactive by the Supreme Court to cases on collateral
review. 28 U.S.C.A. § 2255(h). Clark’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
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