US v. Edward Little

Filing 920090527

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8563

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWARD MONROE LITTLE, a/k/a Ebay, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00012-RLV-10; 5:07-cv-00036-RLV)

Submitted:

May 21, 2009

Decided:

May 27, 2009

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Edward Monroe Little, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Edward Monroe Little seeks to appeal the district

court's order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008) motion and its subsequent order denying his motion to alter or amend the judgment. * unless a circuit justice or The orders are not appealable issues a certificate of

judge

appealability.

28 U.S.C. § 2253(c)(1) (2006).

A certificate of

appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2006). 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 Little has

Because Little's motion to alter or amend judgment was not filed within ten days of the district court's order denying relief on his § 2255 motion as required by Fed. R. Civ. P. 59(e), the time for appealing that order expired before he filed his notice of appeal on December 9, 2008, and only the denial of the motion to alter or amend judgment was preserved for appeal. See Alston v. MCI Commc'ns Corp., 84 F.3d 705, 706 (4th Cir. 1996) (only a timely Rule 59(e) motion tolls time period for filing notice of appeal); Fed. R. App. P. 4(a)(4)(A)(iv)-(vi).

*

2

not

made

the

requisite

showing.

Accordingly,

we

deny

a

certificate of appealability and dismiss the appeal. Little informal Filing." brief, has a also filed, for as an attachment or to his

"Motion

§ 2255

Second

Subsequent

In order to obtain authorization to file a second or

successive § 2255 motion, a prisoner must assert claims based on either: discoverable establish by (1) newly by due discovered diligence, and evidence, would not be previously to for

that

sufficient that, but

clear

convincing

evidence

constitutional error, no reasonable 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. § 2255(h). criteria. Little's claims do not satisfy 28 U.S.C.A. of these

either

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