UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6690
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES HOLMAN BROWNING, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:03-cr-00036-JAB-2; 1:06-cv-00024-WLO-
WWD)
Submitted: September 12, 2011 Decided: October 3, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Holman Browning, Jr., Appellant Pro Se. 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Unpublished opinions are not binding precedent in this circuit.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:
James Holman Browning, Jr., seeks to appeal the
district court’s order adopting the recommendation of the
magistrate judge and denying Browning’s original and amended
motions under Fed. R. Civ. P. 60(b). * Browning also appeals the
district court’s adoption of the recommendation of the
magistrate judge and denial, in that same order, of his motions
seeking an evidentiary hearing, default judgment, to compel a
response, and to resubmit.
The order as to which Browning seeks review is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2006).
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). 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).
*
Because the Rule 60(b) motions directly attacked
Browning’s convictions, they were, in essence, an unauthorized
and successive 28 U.S.C.A. § 2255 (West Supp. 2011) motion over
which the district court lacked jurisdiction. See United
States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).
2
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 Browning has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Browning’s notice of appeal
and informal briefs 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, not previously discoverable by due
diligence, that would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the movant guilty of the
offense; or (2) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review. 28 U.S.C.A. § 2255(h). Browning’s claims do
not satisfy either of these criteria. Therefore, we deny
authorization to file a successive § 2255 motion.
3
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
4