UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7243
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD DAMONE HOPPER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:95-cr-00119-MOC-1; 3:96-cv-00217-MOC)
Submitted: March 29, 2012 Decided: April 2, 2012
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gerald Damone Hopper, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Damone Hopper seeks to appeal the district
court’s order treating his Hazel-Atlas Motion as a successive 28
U.S.C.A. § 2255 (West Supp. 2011) motion, and dismissing it
without prejudice on that basis. He also seeks to appeal the
court’s subsequent orders granting reconsideration but
reaffirming the dismissal of his Hazel-Atlas Motion, denying his
motion to vacate order and reinstate the Hazel-Atlas motion, and
denying his motion for reconsideration or to alter or amend.
The orders are 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 have independently reviewed the record
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and conclude that Hopper has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Hopper’s 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: (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). Hopper’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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