United States v. Scott

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-6333

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

AMOS JUNIOR SCOTT,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:03-cv-00251-LHT)

Submitted: September 29, 2009 Decided: October 5, 2009

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Amos Junior Scott, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Amos Junior Scott 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 Scott has not made the requisite

showing. Accordingly, we deny a certificate of appealability

and dismiss the appeal.

Additionally, we construe Scott’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

2
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). Scott’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