US v. Carlos Andrews

Filing 920100406

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6158

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)

Submitted:

March 30, 2010

Decided:

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

application

second

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:

prisoner discovered

assert

(1) newly by due

evidence,

previously

discoverable

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

would

aid

process. DISMISSED

3