US v. Courtney Bailey

Filing 920090826

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6331 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COURTNEY ANTHONY BAILEY, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:05-cr-00099-AW-1; 8:07-cv-00290-AW) Submitted: August 17, 2009 Decided: August 26, 2009 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Courtney Anthony Bailey, Appellant Pro Se. Chan Park, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Courtney Anthony Bailey 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 Bailey has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, and informal brief as we an construe Bailey'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 Winestock, 340 F.3d 200, 208 (4th Cir. 2003). 2 obtain authorization must to file claims a successive based on 2255 either: motion, a prisoner discovered assert (1) newly by 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 review. Bailey's claims do 28 U.S.C.A. 2255(h) (West Supp. 2009). 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

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