US v. Boynton

Filing 920071126

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-7022

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DAVID BOYNTON, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:97-cr-00294-JRS)

Submitted:

November 15, 2007

Decided:

November 26, 2007

Before WILLIAMS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Boynton, Appellant Pro Se. Charles Everett James, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Boynton 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); A certificate

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

of appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2000). 28 U.S.C. § 2253(c)(2)

A prisoner satisfies this standard by demonstrating that jurists would find that any assessment of the

reasonable

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 Boynton has not made the requisite showing. Accordingly, we deny Boynton's motion for a

certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Additionally, we construe Boynton'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

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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 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

Boynton'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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