US v. Thomas Pickett
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
August 26, 2009
Decided: September 1, 2009
Before TRAXLER, Judges.
Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
successive based on
motion, (1) by
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).
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
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