UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7527
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTHUR F. JONES, a/k/a Arthur Palmer, a/k/a June, a/k/a
Junior,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:99-cr-00362-DCN-1; 2:11-cv-70058-DCN)
Submitted: February 23, 2012 Decided: February 29, 2012
Before DUNCAN, WYNN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Arthur F. Jones, Appellant Pro Se. Sean Kittrell, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arthur F. Jones seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion to vacate the
court’s order denying his 28 U.S.C.A. § 2255 (West Supp. 2011)
motion. * The order 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) (2006). 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 note that the district court should have construed
Jones’s Rule 60(b) motion as an unauthorized second or
successive § 2255 motion and dismissed it on that basis, as the
motion attacked the merits of the underlying order, rather than
a defect in the § 2255 proceeding. See United States v.
Winestock, 340 F.3d 200, 206 (4th Cir. 2003).
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On appeal, as in the district court, Jones seeks
review of the underlying merits of his § 2255 motion. Jones’s
request for relief amounts to an unauthorized successive § 2255
motion. Accordingly, we deny a certificate of appealability and
dismiss the appeal.
We further construe Jones’s 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, 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) (West Supp. 2011). Jones’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 the court and argument would not aid the decisional
process.
DISMISSED
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