US v. Sean Dudley

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:99-cv-00152-RLV,5:97-cr-00001-RLV-1 Copies to all parties and the district court/agency. [999054445]. Mailed to: S. Dudley. [12-7927]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7927

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN LAMONT DUDLEY, a/k/a John D. Brown,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge.
(5:99-cv-00152-RLV; 5:97-cr-00001RLV-1)

Submitted:

February 26, 2013

Decided: March 1, 2013

Before MOTZ, WYNN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Sean Lamont Dudley, Appellant Pro Se.
Robert J. Higdon, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sean

Lamont

Dudley

seeks

to

appeal

the

district

court’s order construing his Fed. R. Civ. P. 60(b) motion for
relief of judgment as a 28 U.S.C.A. § 2255 (West Supp. 2012)
motion and denying it on its merits.

Because Dudley’s motion

was a successive and unauthorized § 2255 motion, see 28 U.S.C.A.
§ 2255(h); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997), the
district court was obligated to dismiss the motion, see United
States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003), and the
order is not appealable unless a circuit justice or judge issues
a

certificate

of

appealability.

28

U.S.C.

§ 2253(c)(1)

(2006); Jones v. Braxton, 392 F.3d 683, 688-89 (4th Cir. 2004).
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).
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

U.S.

that

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

claim of the denial of a constitutional right.
2

a

debatable

Slack, 529 U.S.

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at

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484-85.

conclude

We

that

have

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independently

Dudley

has

not

reviewed

made

the

the

record

requisite

and

showing.

Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally,
and

informal

brief

we

as

an

to

motion,

obtain
a

(1) newly

application

authorization

prisoner
discovered

Dudley’s
to

notice
file

a

of

appeal

second

See Winestock, 340 F.3d at 208.

successive § 2255 motion.
order

construe

must

to

assert

evidence,

not

file

a

successive

claims

based

previously

on

or
In

§ 2255
either:

discoverable

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.

Dudley’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

3