US v. Bazilio
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TROY NOLAN BAZILIO, Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:93-cr-00041-F; 5:97-cv-00032-F)
Submitted: July 24, 2007
July 30, 2007
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Troy Nolan Bazilio, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant United States Attorney, Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Troy Nolan Bazilio 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); Reid A certificate of
v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).
appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable 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). record and conclude that We have independently reviewed the has not made the requisite
Accordingly, we deny a certificate of appealability and
dismiss the appeal. Additionally, we construe Bazilio'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
constitutional error, no reasonable factfinder would have found the movant guilty of the offense. (2000). 28 U.S.C. §§ 2244(b)(2), 2255
Bazilio'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.
- 3 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?