US v. Thomas Smith, Jr.

Filing 920091022

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7327

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS E. SMITH, JR., a/k/a Anthony Young, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:07-cv-01135-TSE; 1:03-cr-00245-TSE-1)

Submitted:

October 15, 2009

Decided:

October 22, 2009

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas E. Smith, Jr., Appellant Pro Se. Benjamin L. Hatch, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Thomas E. Smith, Jr., 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 issues a certificate of

judge

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

certificate of appealability and dismiss the appeal.

The district court's finding that Smith's motion merely reiterated the claims raised in his original § 2255 was tantamount to a finding that the motion for reconsideration was a successive motion.

*

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

2003).

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. 2009). Smith'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

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