US v. Henry Miller

Filing 920090318

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7072

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HENRY EARL MILLER, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:06-cv-00548-HFF)

Submitted:

January 21, 2009

Decided:

March 18, 2009

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Henry Earl Miller, Appellant Pro Se. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Henry Earl Miller seeks to appeal two orders entered by the district court. The first order denied Miller's Fed. R.

Civ. P. 60(b) motion for reconsideration of the district court's order denying relief on his letter that the court construed as a 28 U.S.C. § 2255 (2006) motion. The second order denied his

motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). The order denying Miller's Rule 60(b) motion is not appealable unless a circuit justice or judge issues a

certificate of appealability. Reid v. Angelone, of 369 F.3d

28 U.S.C. § 2253(c)(1) (2000); 363, 369 (4th not Cir. issue 2004). absent A "a

certificate

appealability

will

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2000). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

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 conclude that the district court did not err in construing Miller's February 2006 letter as a § 2255 motion, 2

notwithstanding

the

delay

in

providing

notice

of

that

construction pursuant to Castro v. United States, 540 U.S. 375, 383 (2003). Miller referred to the action as a § 2255 motion in

many of his pleadings, and the district court correctly assessed that the relief he sought could only be obtained in a § 2255 proceeding. Accordingly, we deny a certificate of appealability

and dismiss the appeal. To the extent that Miller's Rule 60(b) motion was a successive § 2255 motion, we construe Miller's notice of appeal and his informal brief filed in this court as an application to file a second or successive motion under 28 U.S.C. § 2255.

United States v. Winestock, 340 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 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), 2255 (2000). Miller's claims

do not satisfy either of these criteria.

Therefore, we deny

authorization to file a successive § 2255 motion.

3

Turning to Miller's § 3582 motion, we have reviewed the record and find no reversible error. the district court's order. Accordingly, we affirm

In addition, we deny as meritless

Miller's motions for recusal and reassignment, to expedite, to instruct the district court to accept filing of § 2255 motion, for immediate release pending appeal, to enforce the district court's order, for default judgment, for justice and due process of law, and for answer to jurisdictional question. We also deny

his motion to compel a response to his request for admissions and his motion to reverse his convictions. 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 IN PART; AFFIRMED IN PART

4