United States v. Smith

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-7327

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

THOMAS E. SMITH, JR., a/k/a Anthony Young,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:07-cv-01135-TSE; 1:03-cr-00245-TSE-1)

Submitted: October 15, 2009 Decided: October 22, 2009

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas E. Smith, Jr., Appellant Pro Se. Benjamin L. Hatch,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Thomas E. Smith, Jr., 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 Smith has

not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal.

*
The district court’s finding that Smith’s motion merely
reiterated the claims raised in his original § 2255 was
tantamount to a finding that the motion for reconsideration was
a successive motion.

2
Additionally, we construe Smith’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

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). Smith’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