UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7879
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY EDWARD STEWART,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:06-cr-00046-JPJ-1; 1:10-cv-80213-JPJ)
Submitted: February 20, 2013 Decided: March 28, 2013
Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Rodney Edward Stewart, Appellant Pro Se. Jennifer R. Bockhorst,
Assistant United States Attorney, Abingdon, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Edward Stewart seeks to appeal the district
court’s order denying his Fed. R. Civ. P. 60(b) motion for
relief from the district court’s order denying his 28 U.S.C.A.
§ 2255 (West Supp. 2012) motion. The order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. See 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 and conclude
that Stewart has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
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Additionally, we construe Stewart’s notice of appeal,
informal brief, and supplemental informal brief as an
application to file a second or successive § 2255 motion. See
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. See 28 U.S.C.A. § 2255(h) (West Supp. 2012).
Stewart’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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