CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7757
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
P. W. FERGUSON, a/k/a PW, a/k/a Patrick William Ferguson,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:06-cr-00061-JFA-6; 3:10-cv-70252-JFA)
Submitted: January 17, 2013 Decided: January 23, 2013
Corrected Opinion Filed: January 31, 2013
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
P. W. Ferguson, Appellant Pro Se. Jimmie Ewing, Assistant
United States Attorney, Nancy Chastain Wicker, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
P. W. Ferguson seeks to appeal the district court’s
order denying his motion under Fed. R. Civ. P. 60(b)(6). * 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). 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 Ferguson has not made the requisite showing.
*
Because Ferguson’s Rule 60(b) motion directly attacked his
conviction, it was, in essence, an unauthorized and successive
28 U.S.C.A. § 2255 (West Supp. 2012) motion over which the
district court lacked jurisdiction. United States v. Winestock,
340 F.3d 200, 206 (4th Cir. 2003).
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Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Ferguson’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). Ferguson’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 this court and argument would not aid the decisional
process.
DISMISSED
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