US v. Terry Green

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 4:99-cr-00558-CMC-1,4:12-cv-02377-CMC Copies to all parties and the district court/agency. [999138253]. Mailed to: Terry Lee Green. [13-6264]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6264

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY LEE GREEN,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
Cameron McGowan Currie, District
Judge. (4:99-cr-00558-CMC-1; 4:12-cv-02377-CMC)

Submitted:

June 20, 2013

Decided:

June 26, 2013

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Terry Lee Green, Appellant Pro Se.
Carrie Fisher Sherard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Terry Lee Green 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 Green has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Green’s notice of appeal and
informal brief as an application to file a second or successive
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§ 2255 motion.

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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).
satisfy

either

of

these

Green’s claims do not

criteria.

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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