US v. Wilson

Filing 920070830

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-6934

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOHN WILSON, a/k/a Green Eyed Donny, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. James H. Michael, Jr., Senior District Judge. (5:96-cr-30068-jhm; 7:07-cv-00162-jct)

Submitted:

August 23, 2007

Decided:

August 30, 2007

Before WILLIAMS, Chief Judge, and WILKINS and HAMILTON, Senior Circuit Judges.

Dismissed by unpublished per curiam opinion.

John Wilson, Appellant Pro Se. Joseph William Hooge Mott, Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: John Wilson 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 and denying his motion for reconsideration. unless a circuit justice or The orders are not appealable judge issues a certificate of

appealability.

28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, A certificate of appealability

369 F.3d 363, 369 (4th Cir. 2004).

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, 68384 (4th Cir. 2001). We have independently reviewed the record and Accordingly, We

conclude Wilson has not made the requisite showing.

we deny a certificate of appealability and dismiss the appeal.*

Additionally, we construe Wilson's notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims 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 (continued...) - 2 -

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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

(...continued) discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255 (2000). Wilson's claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion. - 3 -

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