US v. Marvin Witherspoon

Filing 920091124

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6970

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARVIN HAROLD WITHERSPOON, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cv-00021-RLV; 5:04-cr-00005-RLVDCK-1)

Submitted:

October 29, 2009

Decided:

November 24, 2009

Before MOTZ and Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Marvin Harold Witherspoon seeks to appeal the district court's orders treating his Fed. R. Civ. P. 60(b) motions as successive 28 U.S.C.A. § 2255 (West Supp. 2009) motions, and dismissing them on that basis and denying his motion to alter or amend the judgment. The orders are not appealable unless a

circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). issue absent "a A certificate of appealability will not showing U.S.C. standard find the that of the denial of a A that the or

substantial 28

constitutional prisoner reasonable

right." this would by

§ 2253(c)(2) by any

(2006).

satisfies jurists

demonstrating assessment is of

constitutional

claims

district

court

debatable

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 Witherspoon has not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal. Additionally, we construe Witherspoon's notice of

appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. 2 United States v.

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

In order to motion, a

§ 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. 28 U.S.C.A. § 2255(h) (West Supp. 2009).

Witherspoon'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