US v. Jermol Chin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 1:06-cr-00552-WDQ-1,1:10-cv-02093-WDQ. Copies to all parties and the district court/agency. [998513008] [10-7533]

Case: 10-7533

Document: 9

Date Filed: 01/28/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7533

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMOL CHIN,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:06-cr-00552-WDQ-1; 1:10-cv-02093-WDQ)

Submitted:

January 18, 2011

Decided:

January 28, 2011

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jermol Chin, Appellant Pro Se.
Debra Lynn Dwyer, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-7533

Document: 9

Date Filed: 01/28/2011

Page: 2

PER CURIAM:
Jermol Chin 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

The
judge

order
issues

is
a

not

appealable

certificate

of

unless

a

circuit

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

wrong.

Slack

of

the

constitutional

v.

McDaniel,

529

claims

U.S.

is

473,

484

(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.

Slack, 529 U.S.

at

the

484-85.

conclude

that

We

have
Chin

independently
has

not

made

reviewed
the

record

requisite

and

showing.

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

2

Case: 10-7533

Document: 9

Date Filed: 01/28/2011

Page: 3

Additionally, we construe Chin’s notice of appeal and
informal brief as an application to file a second or successive
§ 2255 motion.

United States v. Winestock, 340 F.3d 200, 208

(4th Cir. 2003).

In order to obtain authorization to file a

successive § 2255 motion, a prisoner must assert claims based on
either:

(1) newly

discoverable
establish

by

by

discovered

due

diligence,

clear

and

evidence,
that

convincing

not

would

be

evidence

previously

sufficient
that,

but

to
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.

28 U.S.C.A.

§ 2255(h)

not

(West

Supp.

2010).

either of these criteria.

Chin’s

claims

do

satisfy

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

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
DISMISSED

3