UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7437
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY A. BLAGROVE, a/k/a Tony,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:95-cr-00052-RGD-1; 2:12-cv-00414-RGD)
Submitted: March 28, 2013 Decided: April 1, 2013
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Anthony A. Blagrove, Appellant Pro Se. William David Muhr,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Blagrove seeks to appeal the district court’s
order dismissing his Fed. R. Civ. P. 60(b) motion filed in his
28 U.S.C.A. § 2255 (West Supp. 2012) proceedings. * 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 have independently reviewed the record and
conclude that Blagrove has not made the requisite showing.
*
Because Blagrove’s Rule 60(b) motion directly attacked his
conviction, it was, in essence, an unauthorized and successive
28 U.S.C.A. § 2255 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, deny leave
to proceed in forma pauperis, and dismiss the appeal.
Additionally, we construe Blagrove’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). Blagrove’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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