UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6286
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT HENRY DAVIS, a/k/a Pops,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:00-cr-00424-PJM-2; 8:09-cv-03250-PJM)
Submitted: May 20, 2010 Decided: May 28, 2010
Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Henry Davis, Appellant Pro Se. John Walter Sippel, Jr.,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Henry Davis seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60(b) motion as a
successive and unauthorized 28 U.S.C.A. § 2255 (West Supp. 2009)
motion, and dismissing it on that basis, and declining to issue
a certificate of appealability. The district court’s 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). 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 Davis has not made the requisite showing.
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Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Davis’s notice of appeal and
informal brief as an application to file a 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, 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).
Davis’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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