UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7477
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES E. DOWNING, a/k/a Marcus Moultrie, a/k/a Rahmel Lyles,
a/k/a Ramez Lyles,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:05-cr-00052-H-2)
Submitted: March 30, 2010 Decided: April 2, 2010
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James E. Downing, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James E. Downing seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of the district court’s order denying relief on
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);
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 Downing 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 Downing’s
Rule 60(b) motion challenge the validity of his convictions.
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Thus, the district court should have construed the motion as a
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. To the extent that Downing’s notice of appeal and
informal brief could be construed as a motion for authorization
to file a successive § 2255 motion, we deny such authorization.
See Winestock, 340 F.3d at 208. 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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