US v. Lorenzo Butts, Jr.

Filing 920100224

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7802

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LORENZO BUTTS, JR., Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:00-cr-00067-JBF-1)

Submitted:

February 18, 2010

Decided:

February 24, 2010

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Lorenzo Butts, Jr., Appellant Pro Se. Kevin Michael Comstock, Joseph Evan DePadilla, Assistant United States Attorneys, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Lorenzo Butts, 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, and denying his motion for recusal. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) A "a

(2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). certificate of appealability will not issue absent

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2006). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

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). that We have independently has not made reviewed the the record and

conclude

Butts

requisite

showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny the Government's motion to consolidate with

Appeal No. 09-7803. Additionally, we construe Butts's notice of appeal and informal brief as an application to file a second or successive 2

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). Butts'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 the the materials decisional

would

aid

process. DISMISSED

3