US v. Bryant Pride

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00024-JPJ-2,1:11-cv-80408-JPJ-RSB Copies to all parties and the district court. [998976941]. Mailed to: Bryant Pride. [12-6615]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6615

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRYANT KELLY PRIDE, a/k/a Pride,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.
James P. Jones, District
Judge. (1:08-cr-00024-JPJ-2; 1:11-cv-80408-JPJ-RSB)

Submitted:

November 2, 2012

Decided:

November 7, 2012

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Bryant Kelly Pride, Appellant Pro Se.
Jennifer R. Bockhorst,
Assistant United States Attorney, Abingdon, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bryant

Kelly

Pride

seeks

to

appeal

the

district

court’s order treating his motion filed pursuant to Fed. R. Civ.
P. 15(c)(1) and Fed. R. Civ. P. 60(b)(6) as a successive 28
U.S.C.A. § 2255 (West Supp. 2012) motion, and dismissing it on
that

basis.

justice

or

The
judge

order
issues

is
a

not

appealable

certificate

U.S.C. § 2253(c)(1)(B) (2006).

of

unless

a

circuit

appealability.

28

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) (2006).

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

Accordingly, we

deny a certificate of appealability and dismiss the appeal.

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Additionally, we construe Pride’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:

(1)

discoverable
establish

newly
by

by

due

discovered
diligence,

clear

and

evidence,
that

convincing

would

not
be

evidence

previously

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)

not

(West

Supp.

2012).

either of these criteria.

Pride’s

claims

do

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

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