US v. Robert Davis

Filing 920100528

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6286

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ROBERT HENRY DAVIS, a/k/a Pops, Defendant ­ Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:00-cr-00424-PJM-2; 8:09-cv-03250-PJM)

Submitted:

May 20, 2010

Decided:

May 28, 2010

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert Henry Davis, Appellant Pro Se. John Walter Sippel, Jr., Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Robert Henry Davis seeks to appeal the district

court's order treating his Fed. R. Civ. P. 60(b) motion as a successive and unauthorized 28 U.S.C.A. § 2255 (West Supp. 2009) motion, and dismissing it on that basis, and declining to issue a certificate of appealability. not appealable of unless a circuit The district court's order is justice or judge issues a

certificate Reid v.

appealability. 369 F.3d

28 U.S.C. 363, 369

§ 2253(c)(1) Cir. issue

(2006); A "a

Angelone, of

(4th not

2004). absent

certificate

appealability

will

substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2006). relief on the merits, that a When the district court denies satisfies would this standard that claims 473, by the is 484

prisoner

demonstrating district debatable

reasonable of v.

jurists the

find

court's or

assessment Slack

constitutional 529 U.S.

wrong.

McDaniel,

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable

claim of the denial of a constitutional right. at 484-85. that We have independently has not made reviewed the

Slack, 529 U.S. the record and

conclude

Davis

requisite

showing.

2

Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Davis's notice of appeal and informal brief as an application to file a successive § 2255 motion. 2003). United States v. Winestock, 340 F.3d 200, 208 (4th Cir. In order to obtain authorization to file a successive

§ 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable 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. Davis's 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. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. DISMISSED

3