US v. Darian Robinson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999050467-2] Originating case number: 1:07-cr-00032-MR-4,1:12-cv-00276-MR. Copies to all parties and the district court/agency. [999123000]. Mailed to: Darian Robinson. [13-6119]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6119

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIAN KENDELL ROBINSON,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00032-MR-4; 1:12-cv-00276-MR)

Submitted:

May 30, 2013

Decided:

June 5, 2013

Before SHEDD, DIAZ, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Darian Kendell Robinson, Appellant Pro Se.
Thomas Richard
Ascik, Amy Elizabeth Ray, Assistant United States Attorneys,
Jill Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darian Kendell Robinson 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

dismissing it on that basis.
a

circuit

justice

appealability.

or

(West

Supp.

2012)

motion,

and

The order is not appealable unless
judge

issues

a

certificate

28 U.S.C. § 2253(c)(1)(B) (2006).

of

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

both

on

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
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 Robinson has not made the requisite showing.

Accordingly,

we deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal.

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Additionally, we construe Robinson’s notice of appeal
and

informal

brief

as

an

application

to

file

a

second

or

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 that . . . would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C.A. § 2255(h) (West Supp. 2012).
not

satisfy

either

of

these

criteria.

Robinson’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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