UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7327
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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
3