US v. Anthony Blagrove

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [998938036-2] Originating case number: 2:95-cr-00052-RGD-1,2:12-cv-00414-RGD Copies to all parties and the district court/agency. [999076816]. Mailed to: Anthony Blagrove. [12-7437]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7437

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY A. BLAGROVE, a/k/a Tony,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:95-cr-00052-RGD-1; 2:12-cv-00414-RGD)

Submitted:

March 28, 2013

Decided:

April 1, 2013

Before NIEMEYER, KING, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Anthony A. Blagrove, Appellant Pro Se.
William David Muhr,
Assistant
United
States
Attorney,
Norfolk,
Virginia,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Anthony Blagrove seeks to appeal the district court’s
order dismissing his Fed. R. Civ. P. 60(b) motion filed in his
28 U.S.C.A. § 2255 (West Supp. 2012) proceedings. *
not

appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

or

The order is

judge

issues

a

28 U.S.C. § 2253(c)(1)(B) (2006).

appealability

will

not

issue

absent

“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006).
relief

on

the

demonstrating
district
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

the

claims

constitutional
529

by

is

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

debatable

claim of the denial of a constitutional right.

Slack, 529 U.S.

at

the

484–85.

conclude

that

We

have

Blagrove

independently
has

not

*

reviewed

made

the

record

requisite

and

showing.

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

2

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Accordingly, we deny a certificate of appealability, deny leave
to proceed in forma pauperis, and dismiss the appeal.
Additionally, we construe Blagrove’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)

discoverable

newly

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.

Blagrove’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
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED

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