US v. David Hill

Filing 920080604

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6058

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID HILL, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:01-cr-00191-CMH-1)

Submitted:

May 29, 2008

Decided:

June 4, 2008

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Hill, Appellant Pro Se. Dabney P. Langhorne, OFFICE OF THE UNITED STATES ATTORNEY, Steven Donald Mellin, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Hill 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); Reid A certificate of

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

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, 683-84 (4th Cir. 2001). We have independently reviewed the

record and conclude that Hill has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Hill'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

file a successive § 2255 motion, a prisoner must assert claims

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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

Hill's claims do not satisfy either of these conditions.

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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