US v. Pete Hirst

Filing 920100309

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8088 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PETE DIAMOND HIRST, a/k/a Pete Harris, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:02-cr-00134-RAJ-TEM-1; 4:09-cv-00145-RAJ) Submitted: February 25, 2010 Decided: March 9, 2010 Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Pete Diamond Hirst, Appellant Pro Se. Fernando Groene, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pete Diamond Hirst seeks to appeal the district court's order treating his "Pro Se Nunc Pro Tunc" motion as a successive 28 U.S.C.A. 2255 (West Supp. 2009) motion, and dismissing it on that basis. a circuit justice 28 or The order is not appealable unless judge issues a certificate (2006); Reid of v. appealability. U.S.C. 2253(c)(1) Angelone, 369 F.3d 363, 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 Hirst has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Additionally, we construe Hirst'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). In order to obtain 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). Hirst'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

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