US v. Darwin Turner

Filing 920090318

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8476

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DARWIN LEWIS TURNER, a/k/a Abbey, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00001-RLV-DCK-2; 5:08-cv00133-RLV)

Submitted:

March 12, 2009

Decided:

March 18, 2009

Before MOTZ and Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Darwin Lewis Turner, Appellant Pro Se. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Darwin Lewis Turner 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 2006 & Supp. 2008) motion, and dismissing it on that basis. unless a circuit justice or The order is not appealable issues a certificate of

judge

appealability. 369 F.3d 363,

28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 (4th Cir. 2004). A certificate of

appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2000). 28 U.S.C. § 2253(c)(2)

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

certificate of appealability and dismiss the appeal. Additionally, and informal brief as we an construe Turner's to notice file a of appeal or

application

second

successive motion under 28 U.S.C.A. § 2255.

United States v. In order to

Winestock, 340 F.3d 200, 208 (4th Cir. 2003). 2

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. satisfy 28 U.S.C. §§ 2244(b)(2), 2255. either of these criteria. Turner's claims do not 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

3