UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7191
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE MCFADDEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:04-cr-00564-TLW-1)
Submitted: December 8, 2015 Decided: December 18, 2015
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Dwayne McFadden, Appellant Pro Se. Rose Mary Parham, PARHAM LAW
OFFICE, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne McFadden seeks to appeal the district court’s order
denying his motion for a new trial.
With respect to the portion of the district court’s order
denying relief under Fed. R. Crim. P. 33, we have reviewed the
record and find no reversible error. Accordingly, we affirm the
district court’s order in part for the reasons stated by the
district court. United States v. McFadden, No.
4:04-cr-00564-TLW-1 (D.S.C. June 3, 2015).
The portion of the district court’s order construing the
new trial motion as seeking relief under 28 U.S.C. § 2255 (2012)
and denying such relief to McFadden 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
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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
McFadden has not made the requisite showing. The district court
lacked jurisdiction to deny § 2255 relief on the merits.
McFadden’s motion challenged the validity of his sentence. The
motion was properly construed as a successive § 2255 motion,
see Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005) (explaining
how to differentiate a true Fed. R. Civ. P. 60(b) motion from an
unauthorized second or successive habeas corpus petition);
United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003)
(same), but should have been dismissed for lack of jurisdiction
in light of the absence of pre-filing authorization from this
court. See 28 U.S.C. § 2244(b)(3) (2012); Winestock, 340 F.3d
at 205.
Accordingly, we deny a certificate of appealability and
dismiss the appeal in part. 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.
AFFIRMED IN PART AND
DISMISSED IN PART
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