US v. Vincent Kring

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:05-cr-00134-PMD-1 Copies to all parties and the district court/agency. [999283402]. Mailed to: appellant. [13-7905]

Appeal: 13-7905

Doc: 7

Filed: 01/24/2014

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7905

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT ROLAND KRING,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, Senior
District Judge. (2:05-cr-00134-PMD-1)

Submitted:

January 21, 2014

Decided: January 24, 2014

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Vincent Roland Kring, Appellant Pro Se.
Michael Rhett DeHart,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-7905

Doc: 7

Filed: 01/24/2014

Pg: 2 of 3

PER CURIAM:
Vincent

Roland

Kring

seeks

to

appeal

the

district

court’s order summarily denying his Fed. R. Civ. P. 60(b) motion
to dismiss the indictment for lack of jurisdiction and for a
jury trial.

A district court must treat a Rule 60(b) motion as

a successive collateral review application “when failing to do
so

would

allow

the

applicant

to

evade

the

bar

against

relitigation of claims presented in a prior application or the
bar

against

litigation

application.”
(4th

Cir.

of

claims

not

presented

in

a

prior

United States v. Winestock, 340 F.3d 200, 206

2003)

(internal

quotation

marks

omitted).

In

distinguishing between a proper motion for reconsideration and a
successive
prisoner’s

application,
conviction

“a

or

motion

sentence

directly
will

attacking

usually

amount

the
to

a

successive application, while a motion seeking a remedy for some
defect in the collateral review process will generally be deemed
a proper motion to reconsider.”

Winestock, 340 F.3d at 207.

We

conclude that because Kring has previously filed a 28 U.S.C.
§ 2255

(2012)

motion,

and

because

Kring’s

Rule

60(b)

motion

directly attacks his conviction, the motion is properly treated
as a successive § 2255 motion.
The order is not appealable unless a circuit justice
or

judge

issues

a

certificate

§ 2253(c)(1)(B) (2012).

of

appealability.

28

U.S.C.

A certificate of appealability will not
2

Appeal: 13-7905

Doc: 7

issue

Filed: 01/24/2014

absent

“a

Pg: 3 of 3

substantial

constitutional right.”

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

of

a

We have

independently reviewed the record and conclude that Kring has
not

made

the

requisite

showing.

Accordingly,

we

deny

a

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

Winestock, 340 F.3d at 208.

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. § 2255(h).
these

criteria.

Kring’s claims do not satisfy either of

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