US v. Rosemond
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CALVIN RICO ROSEMOND, Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (6:02-cr-00435-HMH; 6:06-cv-02741-HMH)
December 21, 2006
Decided: January 5, 2007
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Calvin Rico Rosemond, Appellant Pro Se. Regan Alexandra Pendleton, Assistant United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Calvin Rico Rosemond seeks to appeal the district court's order treating his "Request to Reopen Judgment" as a Fed. R. Civ. P. 60(b) motion and dismissing it as a successive 28 U.S.C. § 2255 (2000) motion. The order is not appealable unless a circuit 28 U.S.C.
justice or judge issues a certificate of appealability.
§ 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 Rosemond has not made the requisite showing. Accordingly, we deny Rosemond's
motion for a certificate of appealability and dismiss the appeal. Additionally, we construe Rosemond'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. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Rosemond'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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