US v. Joseph Sprague

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [998722933-2]. Originating case numbers: 7:04-cr-00029-HMH-1,7:06-cv-01865-HMH. Copies to all parties and the district court/agency. [998796581]. Mailed to: Joseph Sprague. [11-7342]

Appeal: 11-7342

Document: 15

Date Filed: 02/27/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7342

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH MASON SPRAGUE, a/k/a Joseph Mason Hammond,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:04-cr-00029-HMH-1; 7:06-cv-01865-HMH)

Submitted:

February 23, 2012

Decided:

February 27, 2012

Before MOTZ, DAVIS, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Joseph Mason Sprague, Appellant Pro Se. Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-7342

Document: 15

Date Filed: 02/27/2012

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PER CURIAM:
Joseph

Mason

Sprague

seeks

to

appeal

the

district

court’s order denying his Fed. R. Civ. P. 60(b) motion as a
successive and unauthorized 28 U.S.C.A. § 2255 (West Supp. 2011)
motion,

and

has

appealability.
unless

a

filed

motion

for

a

certificate

of

The district court’s order is not appealable

circuit

appealability.

a

justice

or

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.”
(2006).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

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

demonstrate

both

on

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
is

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

Sprague has not made the requisite showing.

and

conclude

Accordingly, we

deny a certificate of appealability and dismiss the appeal.

2

that

Appeal: 11-7342

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Date Filed: 02/27/2012

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Additionally, we construe Sprague’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:
discoverable
establish

by

by

(1) newly discovered evidence, not previously
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. 28 U.S.C.A.
§ 2255(h) (West Supp. 2011).
either of these criteria.

Sprague’s claims do not 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