US v. Robert Davis

Filing 920080331

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6037 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT HENRY DAVIS, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:00cr-00424-PJM-2; 8:07-cv-02458-PJM) Submitted: March 25, 2008 Decided: March 31, 2008 Before MOTZ, KING, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Robert Henry Davis, Appellant Pro Se. Mythili Raman, John Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Henry Davis seeks to appeal the district court's order treating his Fed. R. Civ. P. 60(b) motions as successive 28 U.S.C. 2255 (2000) motions, and dismissing them on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. 2253(c)(1) A (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 2253(c)(2) (2000). that A prisoner satisfies would this 28 U.S.C. standard that by any demonstrating reasonable jurists find 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. 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 Davis has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Davis'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). See United States v. Winestock, 340 In order to obtain authorization to file a successive 2255 motion, a prisoner must assert claims - 2 - 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 Davis'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 - 3 -

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