UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6703
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK CLIFTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:96-cr-00062-H-2; 7:04-cv-00123-H-1)
Submitted: October 14, 2009 Decided: October 26, 2009
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mark Clifton, Appellant Pro Se. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Clifton seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion to reconsider the
court’s prior denial of his 28 U.S.C.A. § 2255 (West Supp. 2009)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006); Jones v. Braxton, 392 F.3d 683, 688 (4th
Cir. 2004); 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 Clifton has not made the requisite showing. The district
court lacked jurisdiction and therefore erred by deciding the
Rule 60(b) motion on the merits. The claims raised in Clifton’s
Rule 60(b) motion challenge the validity of his convictions.
Thus, the district court should have construed the motion as a
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successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524,
531-32 (2005) (explaining how to differentiate a true Rule 60(b)
motion from an unauthorized second or successive habeas corpus
petition); United States v. Winestock, 340 F.3d 200, 207 (4th
Cir. 2003) (same). In the absence of pre-filing authorization
from this court, the district court lacked jurisdiction to hear
a successive § 2255 motion. See 28 U.S.C. § 2244(b)(3).
Accordingly, we deny a certificate of appealability
and dismiss the appeal. 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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