US v. Dwayne Clark

Filing 920090722

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8207

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DWAYNE IVIN CLARK, a/k/a Bill, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:96-cr-00192-WDQ-1)

Submitted:

July 15, 2009

Decided:

July 22, 2009

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Dwayne Ivin Clark, Appellant Pro Se. Christine Manuelian, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Dwayne Ivin Clark seeks to appeal the district court's order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp. 2009) motion, and dismissing it on that basis. justice or judge The order is not appealable unless a circuit issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue

absent "a substantial showing of the denial of a constitutional right." this 28 U.S.C. § 2253(c)(2) (2006). by demonstrating that A prisoner satisfies jurists would

standard

reasonable

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 record (4th and Cir. 2001). that We have independently not made reviewed the the

conclude

Clark

has

requisite

showing.

Accordingly, we deny a certificate of appealability

and dismiss the appeal. Additionally, we construe Clark's notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. 340 F.3d 200, 208 (4th Cir. 2 United States v. Winestock, In order to obtain

2003).

authorization to file a successive § 2255 motion, a prisoner must assert not claims based on either: by (1) newly due discovered that

evidence, would be

previously to for

discoverable establish by

diligence, and no

sufficient that, but

clear error,

convincing reasonable

evidence

constitutional

factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h). Clark'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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