US v. Kelvin Spott

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion-- certificate of appealability denied. Originating case number: 3:98-cr-00047-1, 3:00-cv-00647. Copies to all parties and the district court/agency. [999574984]. [14-7880]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7880

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELVIN ANDRE SPOTTS, a/k/a Shorty,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:98-cr-00047-1; 3:00-cv-00647)

Submitted:

April 21, 2015

Before GREGORY
Circuit Judge.

and

DIAZ,

Decided:

Circuit

Judges,

and

April 30, 2015

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Kelvin Andre Spotts, Appellant Pro Se.
Steven Loew Assistant
United States Attorney, Charleston, West Virginia; Richard
Gregory McVey, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kelvin Andre Spotts seeks to appeal the district court’s
order denying on the merits his Fed. R. Civ. P. 60(b) motion
seeking relief from an order denying his 28 U.S.C. § 2255 (2012)
motion.

Because the Rule 60(b) motion directly attacked Spotts’

convictions,

the

district

court

was

without

jurisdiction

to

consider the motion, which was, in essence, a successive and
unauthorized § 2255 motion.

See United States v. Winestock, 340

F.3d 200, 206 (4th Cir. 2003).
The

district

court’s

order

is

not

appealable

unless

a

circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2012).

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.
529 U.S. at 484-85.
2

Slack,

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We have independently reviewed the record and conclude that
Spotts has not made the requisite showing.

Accordingly, we deny

a certificate of appealability and dismiss the appeal.
Additionally,

we

construe

Spotts’

notice

of

appeal

and

informal brief as an application to file a second or successive
§ 2255 motion.
(4th Cir. 2003).

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

Spotts’ 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
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

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