UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-8024
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHERRELL GARY BRINKLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:91-cr-00131-GCM-1)
Submitted: April 28, 2014 Decided: May 13, 2014
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Sherrell Gary Brinkley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherrell Gary Brinkley seeks to appeal the district
court’s order denying his Fed. R. Civ. P. 60(b) motion, which
attacked his convictions and sentence and constituted a
successive 28 U.S.C. § 2255 (2012) motion. See United States v.
Winestock, 340 F.3d 200, 206 (4th Cir. 2003). 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 issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012). 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 Brinkley has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
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Additionally, we construe Brinkley’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
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) (2012). Brinkley’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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