US v. Lassiter

Filing 920070126

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7509 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GRADY LASSITER, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:01-cr-00154-HCM; 2:06-cv-00473-HCM) Submitted: November 3, 2006 Decided: January 26, 2007 Before MOTZ, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Grady Lassiter, Jr., Appellant Pro Se. Raymond Edward Patricco, Jr., Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Grady Lassiter, 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. 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 reasonable 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 Lassiter has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Lassiter'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 - 2 - 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 clear convincing evidence constitutional error, no reasonable factfinder would have found the movant guilty of the offense. 28 U.S.C. 2244(b)(2), 2255 (2000). Lassiter'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. DISMISSED - 3 -

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