US v. Alphonso Davi


UNPUBLISHED PER CURIAM OPINION filed.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]

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US v. Alphonso Davi Doc. 0 Case: 10-7684 Document: 10 Date Filed: 03/03/2011 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7684 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALPHONSO DAVIS, Defendant - Appellant.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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Case: 10-7684 Document: 10 Date Filed: 03/03/2011 Page: 2 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 Case: 10-7684 Document: 10 Date Filed: 03/03/2011 Page: 3 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

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