US v. Richard Orr

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:00-cr-10067-jpj-mfu, 2:10-cv-80269-jpj-mfu. Copies to all parties and the district court/agency. [998443088] [10-6952]

US v. Richard Orr

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Case: 10-6952 Document: 6

Date Filed: 10/12/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6952 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD A. ORR, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:00-cr-10067-jpj-mfu; 2:10-cv-80269-jpj-mfu) Submitted: September 30, 2010 Decided: October 12, 2010

Before NIEMEYER, AGEE, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Richard A. Orr, Appellant Pro Se. Assistant United States Attorney, Appellee. Steven Randall Ramseyer, Abingdon, Virginia, for

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Richard A. Orr 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. 2010) motion, and dismissing it on that basis. justice or judge The order is not appealable unless a circuit issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2006); Reid 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." 28 U.S.C. § 2253(c)(2) (2006). When the district court

denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district debatable court's or assessment Slack of v. the constitutional 529 U.S. claims 473, is 484

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 Orr independently not made reviewed the

Slack, 529 U.S. the record and

conclude

has

requisite

showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal.

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

successive § 2255 motion, a prisoner must assert claims based on either: (1) newly by due discovered diligence, and evidence, that would not be previously to for

discoverable establish by

sufficient that, but

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) (West Supp. 2010). of these criteria. 28 U.S.C.A.

Orr's claims do not satisfy either

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

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