US v. James Rockett, III

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:05-cr-00135-WDK-JEB-1,2:07-cv-00336-WDK Copies to all parties and the district court/agency. [998454917] [10-6961]

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US v. James Rockett, III Doc. 0 Case: 10-6961 Document: 9 Date Filed: 10/28/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6961 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAMES ROCKETT, III, a/k/a James Rocket, a/k/a James Rockett, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:05-cr-00135-WDK-JEB-1; 2:07-cv-00336-WDK) Submitted: October 19, 2010 Decided: October 28, 2010 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. James Rockett, III, Appellant Pro Se. Darryl James Mitchell, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-6961 Document: 9 Date Filed: 10/28/2010 Page: 2 PER CURIAM: James Rockett, III, 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. 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 Rockett has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Case: 10-6961 Document: 9 Date Filed: 10/28/2010 Page: 3 Additionally, we construe Rockett's notice of appeal and informal brief as an application to file a second or 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. Rockett's claims do not satisfy 28 U.S.C.A. of these either Therefore, we deny authorization to file a successive 2255 motion. Finally, we deny Rockett's motion to seal and motion to subpoena or submit witness statements. We 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 3

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