US v. Alphonso Davi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:95-cr-00059-FDW-1. Copies to all parties and the district court/agency. [998536662] [10-7684]

US v. Alphonso Davi

Doc. 0

Case: 10-7684

Document: 10

Date Filed: 03/03/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7684

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALPHONSO DAVIS, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:95-cr-00059-FDW-1)

Submitted:

February 24, 2011

Decided:

March 3, 2011

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Alphonso Davis, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 10-7684

Document: 10

Date Filed: 03/03/2011

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PER CURIAM: Alphonso Davis seeks to appeal the district court's order denying his motion to vacate the 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. The order

is not appealable unless a circuit justice or judge issues a certificate of appealability. Reid v. Angelone, of 369 F.3d 28 U.S.C. § 2253(c)(1) (2006); 363, 369 (4th not Cir. issue 2004). absent A "a

certificate

appealability

will

substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2006). relief on the merits, that a When the district court denies satisfies would this standard that claims 473, by the is 484

prisoner

demonstrating district debatable

reasonable of v.

jurists the

find

court's or

assessment Slack

constitutional 529 U.S.

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 independently has not made reviewed the

Slack, 529 U.S. the record and

conclude

Davis

requisite

showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal. 2

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Additionally, we construe Davis'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). Davis's claims do 28 U.S.C.A. not satisfy

either of these criteria.

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

3