US v. Laderick Pittman

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:06-cr-00039-F-2,4:10-cv-00036-F Copies to all parties and the district court/agency. [998813845]. Mailed to: Laderick Pittman. [12-6091]

Appeal: 12-6091

Document: 8

Date Filed: 03/20/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6091

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LADERICK DEVON PITTMAN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:06-cr-00039-F-2; 4:10-cv-00036-F)

Submitted:

March 15, 2012

Decided:

March 20, 2012

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Laderick Devon Pittman, Appellant Pro Se.
Barbara Dickerson
Kocher, Assistant United States Attorney, Joshua Bryan Royster,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-6091

Document: 8

Date Filed: 03/20/2012

Page: 2 of 3

PER CURIAM:
Laderick Devon Pittman seeks to appeal the district
court’s order denying his motion under Fed. R. Civ. P. 60(b). *
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(B) (2006).
issue

absent

“a

constitutional

of

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

right.”

28

showing
U.S.C.

of

the

denial

§ 2253(c)(2).

of

When

a
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 of the constitutional
claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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 484-85.

*

Because the Rule 60(b) motion directly attacked Pittman’s
sentence, it was, in essence, an unauthorized and successive
28 U.S.C.A. § 2255 (West Supp. 2011) motion over which the
district court lacked jurisdiction. United States v. Winestock,
340 F.3d 200, 206 (4th Cir. 2003).

2

Appeal: 12-6091

Document: 8

Date Filed: 03/20/2012

Page: 3 of 3

We have independently reviewed the record and conclude
that Pittman has not made the requisite showing.

Accordingly,

we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Pittman’s notice of appeal
and

informal

brief

as

an

successive § 2255 motion.

application

to

file

a

second

Winestock, 340 F.3d at 208.

or

In order

to obtain authorization to file a successive § 2255 motion, a
prisoner

must

discovered

assert

evidence,

claims
not

based

on

previously

either:

(1) newly

discoverable

by

due

diligence, that would be sufficient to establish by clear and
convincing

evidence

that,

but

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.
not

satisfy

28 U.S.C.A. § 2255(h).

either

of

these

criteria.

Pittman’s claims do
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

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