US v. Robert Sill

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:03-cr-00148-AWA-5. Copies to all parties and the district court/agency. [999245498]. Mailed to: Robert Sills. [13-7105]

Appeal: 13-7105

Doc: 10

Filed: 11/22/2013

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7105

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT EDWARD SILLS, a/k/a Bobby,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Arenda L. Wright Allen,
District Judge. (2:03-cr-00148-AWA-5)

Submitted:

November 19, 2013

Before WYNN and
Circuit Judge.

FLOYD,

Circuit

Decided: November 22, 2013

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Robert Edward Sills, Appellant Pro Se.
Laura Marie Everhart,
Benjamin L. Hatch, Assistant United States Attorneys, Norfolk,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-7105

Doc: 10

Filed: 11/22/2013

Pg: 2 of 3

PER CURIAM:
Robert

Edward

Sills

seeks

to

appeal

the

district

court’s order treating his filing as a successive 28 U.S.C.A.
§ 2255
basis.
judge

(West

Supp.

2013)

and

dismissing

it

on

that

The order is not appealable unless a circuit justice or
issues

a

certificate

§ 2253(c)(1)(B) (2006).
issue

motion,

absent

“a

of

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

appealability.

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2006).

of

a

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 Sills has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Sills’ notice of appeal and
informal brief as an application to file a second or successive
2

Appeal: 13-7105

Doc: 10

§ 2255 motion.

Filed: 11/22/2013

Pg: 3 of 3

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).

Sills’ claims do not

satisfy

Therefore,

either

of

these

criteria.

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

*

Insofar as Sills may be seeking relief under 18 U.S.C.
§ 3582(c) (2006), we agree with the district court that Sills is
not eligible for a sentence reduction under the Sentencing
Guidelines.

3