US v. Pete Hirst
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
February 25, 2010
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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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,
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
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.
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?