US v. Reynolds

Filing 920080212

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7374 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus WILLIE REYNOLDS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. N. Carlton Tilley, Jr., District Judge. (6:90-cr-00054; 6:93-cv-00357) Submitted: January 18, 2008 Decided: February 12, 2008 Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Willie Reynolds, Appellant Pro Se. Paul Alexander Weinman, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Willie Reynolds seeks to appeal the district court's order adopting the recommendation of the magistrate judge, treating his Fed. R. Civ. P. 60(b) motions as successive 28 U.S.C. 2255 (2000) motions, and dismissing them on that basis. not appealable unless a circuit justice or The order is issues a judge certificate of appealability. See 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. See 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 Reynolds has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Additionally, we construe Reynolds' notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. 2255. See United States v. Winestock, 340 - 2 - 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). See 28 U.S.C. 2244(b)(2), 2255 Reynolds' 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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