US v. Hall

Filing 920071226

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-6622

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus WAINSWORTH MARCELLUS HALL, a/k/a Unique, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:93-cr-00162-RAJ; 2:07-cv-00077-RAJ)

Submitted:

December 20, 2007

Decided:

December 26, 2007

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Wainsworth Marcellus Hall, Appellant Pro Se. Howard Jacob Zlotnick, Assistant United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Wainsworth Marcellus Hall 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. or judge The order is not appealable unless a circuit justice a certificate of appealability. 28 U.S.C.

issues

§ 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

reasonable

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 Hall has not made the requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal. Additionally, we construe Hall'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

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

Hall'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

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