US v. Darwin Turner
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
March 12, 2009
March 18, 2009
Before MOTZ and Circuit Judge.
Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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
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
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?