UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6990
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PJ JAMAL GILYARD,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:03-cr-00134-GCM-CH-7; 3:07-cv-00488-
GCM)
Submitted: September 29, 2009 Decided: October 8, 2009
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
PJ Jamal Gilyard, Appellant Pro Se. Keith Michael Cave, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
PJ Jamal Gilyard 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 Gilyard has not made the requisite
showing. Accordingly, we deny a certificate of appealability
and dismiss the appeal.
Additionally, we construe Gilyard’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
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obtain 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) (West Supp. 2009).
Gilyard’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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