United States v. Keoki Harris

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6812

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

KEOKI KENTA HARRIS, a/k/a Kenta Harris,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:08-cr-01221-GRA-1)

Submitted: September 19, 2013 Decided: October 17, 2013

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Keoki Kenta Harris, Appellant Pro Se. Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Keoki Kenta Harris 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. 2013) 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)(B) (2006). 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). When the district court denies relief on the merits, a

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that the district court’s

assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003). When the district court

denies relief on procedural grounds, the prisoner must

demonstrate both that the dispositive procedural ruling is

debatable, and that the motion states a debatable claim of the

denial of a constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude

that Harris has not made the requisite showing. Accordingly, we

deny a certificate of appealability and dismiss the appeal.

Additionally, we construe Harris’s notice of appeal

and informal brief as an application to file a second or

2
successive § 2255 motion. 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 that . . . would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.

28 U.S.C.A. § 2255(h) (West Supp. 2013). Harris’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 this court and argument would not aid the decisional

process.

DISMISSED