US v. Richard Degout

Filing 402842060

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for bail/release pending appeal (Local Rule 9(a) and (b)) [998345754-2] Originating case number: 3:94-cr-00008-jct-mfu-3,3:10-cv-80230-jct-mfu Copies to all parties and the district court/agency. [998358469] [10-6474]

Case: 10-6474

Document: 15

Date Filed: 06/14/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6474 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD DAVID DEGOUT, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. James C. Turk, Senior District Judge. (3:94-cr-00008-jct-mfu-3; 3:10-cv-80230-jctmfu) Submitted: May 28, 2010 Decided: June 14, 2010

Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Richard David Degout, Appellant Pro Se. Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Case: 10-6474

Document: 15

Date Filed: 06/14/2010

Page: 2

PER CURIAM: Richard David Degout 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). prisoner reasonable 28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a satisfies jurists this would standard find that by the demonstrating district that

court's

assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief both on procedural the When the district court the prisoner ruling must is

grounds,

demonstrate

that

dispositive

procedural

debatable, and that the motion states a debatable claim of the denial of a constitutional right. We have independently reviewed the Slack, 529 U.S. at 484-85. record and conclude that

Degout has not made the requisite showing.

Accordingly, we deny

a certificate of appealability and dismiss the appeal.

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Case: 10-6474

Document: 15

Date Filed: 06/14/2010

Page: 3

Additionally, and informal brief as

we an

construe

Degout's to

notice file a

of

appeal or

application

second

successive § 2255 motion. 200, 208 (4th Cir. 2003).

United States v. Winestock, 340 F.3d 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 establish by by due diligence, and that would be sufficient that, but to for

clear

convincing

evidence

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. § 2255(h). criteria. Degout's claim does not satisfy 28 U.S.C.A. of these

either

Therefore, we deny authorization to file a successive

§ 2255 motion. We deny Degout's motion for bail pending appeal and dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED

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