US v. Terry Stewart

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 3:01-cr-00011-MOC-2,3:08-cv-00436-MOC Copies to all parties and the district court/agency. [998975619]. Mailed to: Terry Stewart. [12-7547]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7547

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY W. STEWART,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:01-cr-00011-MOC-2; 3:08-cv-00436-MOC)

Submitted:

November 2, 2012

Decided:

November 6, 2012

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Terry W. Stewart, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Terry W. Stewart 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 dismissing it
on that basis.
justice

or

The order is not appealable unless a circuit

judge

issues

a

certificate

U.S.C. § 2253(c)(1)(B) (2006).

of

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 Stewart has not made the requisite showing.

Accordingly,

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

informal

brief

as

an

application
2

to

file

a

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

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.
§ 2255(h) (West Supp. 2012).
either of these criteria.

28 U.S.C.A.

Stewart’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