US v. Queen
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SAMUEL ROBERT QUEEN, JR., Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:93-cr00369-AMD-1; 1:06-cv-01250-AMD)
Submitted: October 17, 2006
Decided: October 23, 2006
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Samuel Robert Queen, Jr., Appellant Pro Se. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
PER CURIAM: Samuel Robert Queen, Jr., seeks to appeal the district court's order 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. or judge The order is not appealable unless a circuit justice a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent "a 28
substantial showing of the denial of a constitutional right." U.S.C. § 2253(c)(2) (2000). demonstrating that
A prisoner satisfies this standard by 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 Queen has not made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. Additionally, we construe Queen'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
file a successive § 2255 motion, a prisoner must assert claims
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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
Queen'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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