US v. Mark Konsavich
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:05-cr-00019-GEC-RSB-1,5:13-cv-80575-GEC-RSB Copies to all parties and the district court/agency. [999161829]. Mailed to: Mark Konsavich. [13-6735]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6735
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK JAMES KONSAVICH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge.
(5:05-cr-00019-GEC-RSB-1; 5:13-cv-80575-GECRSB)
Submitted:
July 25, 2013
Decided:
July 30, 2013
Before GREGORY, DAVIS, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mark James Konsavich, Appellant Pro Se.
Jeb Thomas Terrien,
Assistant United States Attorney, Harrisonburg, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Mark
James
Konsavich
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.
2013)
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
on
both
procedural
that
the
When the district court
grounds,
dispositive
the
prisoner
procedural
must
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 Konsavich has not made the requisite showing.
Accordingly,
we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Konsavich’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 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. 2013).
not
satisfy
either
of
these
Konsavich’s claims do
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
3
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