US v. Brown

Filing 920080327

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-7324

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EMANUEL BROWN, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., District Judge. (2:90-cr-00240; 1:07-cv-00195-NCT)

Submitted:

March 25, 2008

Decided:

March 27, 2008

Before MOTZ, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Emanuel Brown, Appellant Pro Se. Angela Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Emanuel Brown seeks to appeal the district court's order accepting the recommendation of the magistrate judge 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 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, 68384 (4th Cir. 2001). conclude that We have independently reviewed the record and has not made the requisite showing.

Brown

Accordingly, although we grant Brown's motion to amend his informal brief, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Brown'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

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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 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

Brown'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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