US v. James Rockett, III

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

US v. James Rockett, III

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Case: 10-6961 Document: 9

Date Filed: 10/28/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6961 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JAMES ROCKETT, III, a/k/a James Rocket,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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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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.

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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

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