UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6297
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARTELL WHITAKER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. C. Weston Houck, Senior District
Judge. (0:98-cr-01016-MBS-1; 0:01-cv-03207-CWH)
Submitted: January 19, 2011 Decided: February 15, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Martell Whitaker, Appellant Pro Se. Jane Barrett Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martell Whitaker 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. 2010) 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). 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 Whitaker has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
2
Additionally, we construe Whitaker’s notice of appeal
and informal brief as an application to file a second or
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. 2010). Whitaker’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
3