UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7802
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORENZO BUTTS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:00-cr-00067-JBF-1)
Submitted: February 18, 2010 Decided: February 24, 2010
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Lorenzo Butts, Jr., Appellant Pro Se. Kevin Michael Comstock,
Joseph Evan DePadilla, Assistant United States Attorneys,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Butts, 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, and denying his motion for recusal.
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 Butts has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We deny the Government’s motion to consolidate with
Appeal No. 09-7803.
Additionally, we construe Butts’s notice of appeal and
informal brief as an application to file a second or successive
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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). Butts’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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