US v. Thomas Pickett

Filing 920090901

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6277

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS NEIL PICKETT, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:04-cr-00047-F-1)

Submitted:

August 26, 2009

Decided: September 1, 2009

Before TRAXLER, Judges.

Chief

Judge,

and

GREGORY

and

SHEDD,

Circuit

Dismissed by unpublished per curiam opinion.

Thomas Neil Pickett, Appellant Pro Se. Steve R. Matheny, Assistant United States Attorney, Eric David Goulian, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Thomas Neil Pickett 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. 2009) 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 Pickett has not made the requisite showing. Accordingly, we deny a

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

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

United States v. In order to

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

obtain

authorization must

to

file claims

a

successive based on

§

2255

motion, (1) by

a

prisoner discovered

assert

either:

newly due

evidence,

not

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 Pickett's review. claims 28 do U.S.C.A. not § 2255(h) either (West of Supp. 2009).

satisfy

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