US v. Cargill
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, versus FREDERICK ANTHONY CARGILL, Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (2:94-cr-00300-JAB-8; 1:06-cv-00086-JAB)
May 24, 2006
August 8, 2006
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Frederick Anthony Cargill, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
PER CURIAM: Frederick Anthony Cargill seeks to appeal the district court's order accepting the recommendation of the magistrate judge, treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on that basis. The order
is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); A certificate
Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).
of appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2000). 28 U.S.C. § 2253(c)(2)
A prisoner satisfies this standard by demonstrating that jurists would find that any assessment of the
constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently
reviewed the record and conclude that Cargill has not made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. Additionally, we construe Cargill's notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. § 2255. F.3d 200, 208 (4th Cir. 2003). United States v. Winestock, 340
In order to obtain authorization to
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file a successive § 2255 motion, a prisoner must assert claims based on either: (1) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on collateral review; or (2) newly discovered evidence, not previously discoverable establish by by due diligence, and that would be sufficient that, but to for
constitutional error, no reasonable factfinder would have found the movant guilty of the offense. (2000). 28 U.S.C. §§ 2244(b)(2), 2255
Cargill'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.
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