US v. Henry

Filing 920070629

Opinion

Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6395 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ARNOLD MARK HENRY, a/k/a B, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:93-cr-00131-HCM) Submitted: June 21, 2007 Decided: June 29, 2007 Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Arnold Mark Henry, Appellant Pro Se. Arenda L. Wright Allen, Kevin Michael Comstock, Assistant United States Attorneys, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Arnold Mark Henry seeks to appeal the district court's orders treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. 2255 (2000) motion, dismissing the motion on that basis, and denying reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of 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). We have independently reviewed the record and conclude that Henry has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Henry'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). Henry'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 -

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?