US v. Frederick Seller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:01-cr-00058-CWH-1,4:04-cv-22627-CWH Copies to all parties and the district court/agency. [998639881]. Mailed to: Frederick Lynn Sellers. [11-6621]

Appeal: 11-6621

Document: 8

Date Filed: 07/26/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6621

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FREDERICK LYNN SELLERS,
Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
C. Weston Houck, Senior District
Judge. (4:01-cr-00058-CWH-1; 4:04-cv-22627-CWH)

Submitted:

July 21, 2011

Before NIEMEYER and
Senior Circuit Judge.

GREGORY,

Decided:

Circuit

Judges,

July 26, 2011

and

HAMILTON,

Dismissed by unpublished per curiam opinion.

Frederick Lynn Sellers, Appellant Pro Se. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-6621

Document: 8

Date Filed: 07/26/2011

Page: 2 of 3

PER CURIAM:
Frederick Lynn Sellers 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

dismissing it on that basis.
a

circuit

justice

appealability.

or

(West

Supp.

2010)

motion,

and

The order is not appealable unless
judge

issues

a

certificate

28 U.S.C. § 2253(c)(1)(B) (2006).

of

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).

When the district court denies relief on the merits, a prisoner
satisfies this standard by demonstrating that reasonable jurists
would

find

that

the

district

court’s

assessment

constitutional claims is debatable or wrong.

of

the

Slack v. McDaniel,

529 U.S. 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

right.

debatable
Slack,

529

claim

of

the

denial

U.S.

at

484-85.

of

We

a

constitutional

have

independently

reviewed the record and conclude that Sellers has not made the
requisite

showing.

Accordingly,

we

deny

a

certificate

of

appealability and dismiss the appeal.
Additionally,
and

informal

brief

as

we
an

construe

Sellers’

application
2

to

notice
file

a

of

appeal

second

or

Appeal: 11-6621

Document: 8

Date Filed: 07/26/2011

Page: 3 of 3

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 discovered evidence, not previously
discoverable
establish

by

by

due

diligence,

clear

and

that

convincing

would

be

evidence

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.
§ 2255(h).

Sellers’

criteria.

claims

do

not

satisfy

28 U.S.C.A.

either

of

these

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