US v. P. Ferguson

Filing

Corrected opinion filed [999034147] amending and superseding prior opinion Originating case number: 3:06-cr-00061-JFA-6,3:10-cv-70252-JFA. Copies to all parties. Mailed to: P.W. Ferguson. [12-7757]

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CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7757

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
P. W. FERGUSON, a/k/a PW, a/k/a Patrick William Ferguson,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:06-cr-00061-JFA-6; 3:10-cv-70252-JFA)

Submitted:

January 17, 2013
Corrected Opinion Filed:

Decided:

January 23, 2013

January 31, 2013

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

P. W. Ferguson, Appellant Pro Se.
Jimmie Ewing, Assistant
United States Attorney, Nancy Chastain Wicker, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
P. W. Ferguson seeks to appeal the district court’s
order denying his motion under Fed. R. Civ. P. 60(b)(6). *

The

order is not appealable unless a circuit justice or judge issues
a

certificate

(2006).

of

appealability.

28

U.S.C.

§

2253(c)(1)(B)

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).
on

the

merits,

demonstrating
district
debatable

that

court’s
or

a

When the district court denies relief

prisoner

satisfies

reasonable

assessment

wrong.

Slack

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

Ferguson

independently
has

not

*

reviewed

made

the

record

requisite

and

showing.

Because Ferguson’s Rule 60(b) motion directly attacked his
conviction, it was, in essence, an unauthorized and successive
28 U.S.C.A. § 2255 (West Supp. 2012) 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 and dismiss
the appeal.
Additionally, we construe Ferguson’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.

Ferguson’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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