US v. Emmett Graham, Jr.

Filing 920090707

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6135

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EMMETT MADISON GRAHAM, JR., Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:97-cr-00098-F-1)

Submitted:

May 28, 2009

Decided:

July 7, 2009

Before MOTZ and Circuit Judge.

KING,

Circuit

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Emmett Madison Graham, Jr., Appellant Pro Se. Michael Gordon James, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Emmett Madison Graham, Jr., 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. 2008) motion, and dismissing it on that basis. a circuit justice or The order is not appealable unless judge issues a certificate of

appealability. 369 F.3d 363,

28 U.S.C. § 2253(c)(1) (2006); 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." (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 Graham has not made the requisite showing. motion appeal. for We a certificate further deny of Accordingly, we deny Graham's appealability motions and for dismiss bail and the to

Graham's

schedule a bail hearing and deny as moot Graham's motion to expedite review of the motion for bail or the merits of the appeal. 2

Additionally, and informal brief as

we an

construe

Graham'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 motion, a

Winestock, 340 F.3d 200, 208 (4th Cir. 2003). obtain authorization must to file claims not a successive based on

§ 2255 either:

prisoner discovered

assert

(1) newly by due

evidence,

previously

discoverable

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; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. not satisfy either 28 U.S.C.A. § 2255(h). of these criteria. Graham's claims do 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