US v. Rodney Wall

Filing 920090529

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6146

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RODNEY EDWARD Rodney, WALL, a/k/a Sld Dft 3:99-24-9, a/k/a Big

Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:99-cr-00024-FDW-9)

Submitted:

May 21, 2009

Decided:

May 29, 2009

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Rodney Edward Wall, Appellant Pro Se. Douglas Scott Broyles, Assistant United States Attorney, Charlotte, North Carolina, Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Rodney Edward Wall seeks to appeal the district

court's order denying his Fed. R. Civ. P. 60(b) motion seeking reconsideration motion. judge of his 28 U.S.C.A. § 2255 (West Supp. 2008)

The order is not appealable unless a circuit justice or issues a certificate Reid v. of appealability. 369 F.3d 28 U.S.C. 369

§ 2253(c)(1)

(2006);

Angelone,

363,

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

conclude

Wall

has

requisite

Accordingly, we deny a certificate of appealability

and dismiss the appeal. Additionally, we construe Wall's notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. § 2255. 340 F.3d 200, 208 (4th Cir. 2 United States v. Winestock, 2003). In order to obtain

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) (West Supp. 2008). Wall'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

3