US v. Deveaux
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LEROY MAURICE DEVEAUX, Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Cameron McGowan Currie, District Judge. (5:01-cr-00096; 5:03-cv-03865-CMC)
March 5, 2007
March 27, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Leroy Maurice Deveaux, Appellant Pro Se. William Kenneth Witherspoon, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Leroy Maurice Deveaux 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. Deveaux also seeks to appeal the district court's The
order denying his motion filed under Fed. R. Civ. P. 59(e).
orders are 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 Deveaux has not made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. Additionally, we construe Deveaux's notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. § 2255. United States v. Winestock, 340
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F.3d 200, 208 (4th Cir. 2003).
In order to obtain authorization to
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
Deveaux'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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