UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6158
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CARLOS TOLSON ANDREWS, a/k/a Crip Los,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:06-cr-00017-LMB-2; 1:09-cv-00461-LMB)
Submitted: March 30, 2010 Decided: April 6, 2010
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Carlos Tolson Andrews, Appellant Pro Se. Derek Andreson, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Tolson Andrews 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 Andrews has
not made the requisite showing. Accordingly, we deny Andrews’
motion for a certificate of appealability and dismiss the
appeal.
Additionally, we construe Andrews’ 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.
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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).
Andrews’ 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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