US v. Butts

Filing 920070622

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6438 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LORENZO BUTTS, JR., a/k/a Lorenza Butts, a/k/a Lorenza Butts, Jr. Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:00-cr-00067-JBF) Submitted: June 15, 2007 Decided: June 22, 2007 Before WIDENER, MICHAEL, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Lorenzo Butts, Jr., Appellant Pro Se. Kevin Michael Comstock, Joseph Evan DePadilla, Assistant United States Attorneys, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lorenzo Butts, Jr. 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). We have independently reviewed the record and conclude that Butts has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Butts' 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 Butts' 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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