United States v. Billy Joe Collins

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-6895

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

BILLY JOE COLLINS, a/k/a B.J.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00375-NCT-4;
1:17-cv-00371-NCT-JLW)

Submitted: September 26, 2017 Decided: September 28, 2017

Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Billy Joe Collins, Appellant Pro Se. Randall Stuart Galyon, OFFICE OF THE UNITED
STATES ATTORNEY, Robert Michael Hamilton, Angela Hewlett Miller, Assistant
United States Attorneys, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Billy Joe Collins seeks to appeal the district court’s order adopting the

recommendation of the magistrate judge, construing his self-styled “Motion to Vacate

Judgment Pursuant to [Fed. R. Civ. P.] 60(b)” as a successive 28 U.S.C. § 2255 (2012)

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)(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 Collins has not

made the requisite showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal.

Additionally, we construe Collins’ 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:

2
(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). Collins’ 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