US v. Carlos Andrews
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff Appellee, v. CARLOS TOLSON ANDREWS, a/k/a Crip Los, Defendant Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:06-cr-00017-LMB-2; 1:09-cv-00461-LMB)
March 30, 2010
April 6, 2010
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Carlos Tolson Andrews, Appellant Pro Se. Derek Andreson, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Carlos Tolson Andrews 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 judge issues a certificate of
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 Andrews has not made the requisite showing. motion appeal. Additionally, and informal brief as we an construe Andrews' to notice file a of appeal or for a certificate of Accordingly, we deny Andrews' appealability and dismiss the
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:
(1) newly by due
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. Andrews' claims do 28 U.S.C.A. § 2255(h) (West Supp. 2009). not satisfy either of these criteria.
Therefore, we deny authorization to file a successive § 2255 motion. legal before We dispense with oral argument because the facts and are and adequately argument presented not in the the materials decisional
contentions the court
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