UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6478
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMINIQUE ALEXANDER JONES, a/k/a Big Nique, a/k/a Nique,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:10-cr-00074-F-1; 5:15-cv-00072)
Submitted: September 10, 2015 Decided: September 23, 2015
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Dominique Alexander Jones, Appellant Pro Se. Jennifer P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dominique Jones appeals the district court’s orders
dismissing his 28 U.S.C. § 2255 (2012) motion as successive but
unauthorized, and treating his Fed. R. Civ. P. 60(b) motion as a
successive § 2255 motion and dismissing it on the same basis.
On appeal, Jones re-asserts his challenges to his underlying
conviction, and argues that his postjudgment motion is not a
successive § 2255 motion, but is in fact a true Rule 60(b)
motion.
To the extent Jones appeals from the district court’s
dismissal of his § 2255 motion, he needs a circuit justice or
judge to issue a certificate of appealability in order to
proceed. 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, as here, 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 v. McDaniel, 529 U.S. 473, 484-85 (2000).
Federal prisoners are prohibited from filing “second or
successive” collateral attacks on a conviction or sentence
absent preauthorization from a federal circuit court. 28
U.S.C. § 2255(h). Because Jones fails to demonstrate that the
2
district court’s ruling that he lacked authorization to submit a
successive § 2255 motion was debatable, we deny a certificate of
appealability and dismiss this portion of the appeal.
Jones does not, however, require a certificate of
appealability in order for us to determine whether his
postjudgment motion was a § 2255 motion, a true Rule 60(b)
motion, or a hybrid of both. United States v. McRae, 793 F.3d
392, 400 (4th Cir. 2015). 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) (quoting Calderon v. Thompson, 523 U.S. 538, 553
(1998)). In distinguishing between a proper motion for
reconsideration and a successive application, we have stated
that “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.” Id. at 207.
After reviewing the record, we conclude that the district
court properly construed Jones’ postjudgment motion as a
successive § 2255 motion because in it, Jones attacks his
3
conviction without attempting to remedy some defect in the
collateral review process. Because Jones previously filed a
§ 2255 motion and has not received authorization to submit a
successive § 2255 motion, we affirm the district court’s order
dismissing his postjudgment motion, reconstrued as a § 2255
motion, for want of jurisdiction.
Under our holding in Winestock, we must construe Jones’
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). Jones’ claims satisfy neither of these
criteria. Therefore, we deny authorization to file a successive
§ 2255 motion.
We also deny Jones’ motions to appoint counsel and for
default judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
4
materials before this court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
5