US v. Chad Simpson

Filing 920081119

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6957

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. CHAD ERIC SIMPSON, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:01-cr-00189-GCM-4; 3:08-cv-00197-GCM)

Submitted:

November 13, 2008

Decided:

November 19, 2008

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Chad Eric Simpson, Appellant Pro Se. Gretchen C.F. Shappert, United States Attorney, Robert James Conrad, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Chad Eric Simpson seeks to appeal the district court=s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008) motion. judge The order is not appealable unless a circuit justice or issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2000). issue absent Aa

A certificate of appealability will not showing of the denial (2000). of a A that the or

substantial

constitutional prisoner reasonable

right.@ this would by

28 U.S.C. standard find the

§ 2253(c)(2) by any

satisfies jurists

demonstrating assessment is of

that

constitutional

claims

district

court

debatable

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 Simpson has not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal. Additionally, Simpson seeks to appeal the district

court=s dismissal of his motion filed under Fed. R. Civ. P. 59(e) as a second or successive § 2255 motion. We construe Simpson=s

notice of appeal and informal brief as an application to file a second or successive motion under § 2255. United States v.

Winestock, 340 F.3d 200, 208 (4th Cir. 2003).

In order to

obtain authorization to file a successive 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 by due

diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the movant guilty of the offense. 28 U.S.C. § 2244(b)(2) (2006), § 2255(h). Simpson=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 before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. DISMISSED

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