UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7905
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT ROLAND KRING,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:05-cr-00134-PMD-1)
Submitted: January 21, 2014 Decided: January 24, 2014
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Vincent Roland Kring, Appellant Pro Se. Michael Rhett DeHart,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Roland Kring seeks to appeal the district
court’s order summarily denying his Fed. R. Civ. P. 60(b) motion
to dismiss the indictment for lack of jurisdiction and for a
jury trial. A district court must treat a Rule 60(b) motion as
a successive collateral review application “when failing to do
so would allow the applicant to evade the bar against
relitigation of claims presented in a prior application or the
bar against litigation of claims not presented in a prior
application.” United States v. Winestock, 340 F.3d 200, 206
(4th Cir. 2003) (internal quotation marks omitted). In
distinguishing between a proper motion for reconsideration and a
successive application, “a motion directly attacking the
prisoner’s conviction or sentence will usually amount to a
successive application, while a motion seeking a remedy for some
defect in the collateral review process will generally be deemed
a proper motion to reconsider.” Winestock, 340 F.3d at 207. We
conclude that because Kring has previously filed a 28 U.S.C.
§ 2255 (2012) motion, and because Kring’s Rule 60(b) motion
directly attacks his conviction, the motion is properly treated
as a successive § 2255 motion.
The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2012). A certificate of appealability will not
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issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). We have
independently reviewed the record and conclude that Kring has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Additionally, we construe Kring’s notice of appeal and
informal brief as an application to file a second or successive
§ 2255 motion. Winestock, 340 F.3d at 208. 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. § 2255(h). Kring’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
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