US v. Hugh Epp

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for transcript at government expense [999276281-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999276280-2]; denying for certificate of appealability Originating case number: 3:07-cr-00420-JRS-1 Copies to all parties and the district court/agency. [999327283].. [13-8051]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-8051

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUGH EPPS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, District
Judge. (3:07-cr-00420-JRS-1)

Submitted:

March 27, 2014

Before MOTZ, Circuit
Circuit Judges.

Judge,

Decided:

and

HAMILTON

and

April 1, 2014

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Hugh Epps, Appellant Pro Se. Gurney Wingate Grant, II, Michael
Calvin Moore, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Hugh Epps seeks to appeal the district court’s order
treating

his

motion

for

a

writ

of

error

coram

nobis

as

a

successive 28 U.S.C. § 2255 (2012) motion, and dismissing it on
that

basis.

justice

or

The
judge

order
issues

is
a

not

appealable

certificate

U.S.C. § 2253(c)(1)(B) (2012).

of

unless

a

circuit

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) (2012).

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 Epps has not made the requisite showing.

Accordingly, we

deny Epps’ motion for a transcript at government expense, deny a
certificate of appealability, deny leave to proceed in forma
pauperis, and dismiss the appeal.
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Additionally, we construe Epps’ 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. § 2255(h) (2012).
of these criteria.

Epps’ claims do not satisfy either

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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