US v. Thomas Braddy, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:07-cr-00048-RBS-TEM-1 Copies to all parties and the district court/agency. [999010677]. Mailed to: appellant. [12-7426]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7426

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS MONIQUE BRADDY, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.
Rebecca Beach Smith,
Chief District Judge. (4:07-cr-00048-RBS-TEM-1)

Submitted:

December 20, 2012

Decided:

December 27, 2012

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

Dismissed by unpublished per curiam opinion.

Thomas Monique Braddy, Jr.,
Zlotnick, Assistant United
Virginia, for Appellee.

Appellant Pro Se.
States Attorney,

Howard
Newport

Jacob
News,

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas

Monique

Braddy,

Jr.,

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 (West Supp. 2012) motion, and
denying it on that basis.

The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.
28

U.S.C.

§ 2253(c)(1)(B)

(2006).

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

on

both

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

must

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 Braddy 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

Braddy’s

application
2

to

notice
file

a

of

appeal

second

or

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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

clear

diligence,
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) (West Supp. 2012).
either of these criteria.

28 U.S.C.A.

Braddy’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
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED

3