US v. Zellner

Filing 920070403

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7569 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ANTHONY EDWARD ZELLNER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:99-cr-00164-RAJ; 2:01-cv-00311-RAJ) Submitted: March 29, 2007 Decided: April 3, 2007 Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Anthony Edward Zellner, Appellant Pro Se. Laura P. Tayman, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anthony Edward Zellner 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. issues 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 reasonable 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 Zellner has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Zellner'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. (2000). 28 U.S.C. 2244(b)(2), 2255 Zellner'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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