US v. Dominique Jone

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for default judgment [999641852-2]; denying Motion to appoint/assign counsel [999641847-2] Originating case number: 5:10-cr-00074-F-1,5:15-cv-00072 Copies to all parties and the district court/agency. [999665331]. Mailed to: Dominique Jones. [15-6478]

Appeal: 15-6478

Doc: 14

Filed: 09/23/2015

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6478

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMINIQUE ALEXANDER JONES, a/k/a Big Nique, a/k/a Nique,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:10-cr-00074-F-1; 5:15-cv-00072)

Submitted:

September 10, 2015

Decided:

September 23, 2015

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

Dominique Alexander Jones, Appellant Pro Se. Jennifer P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-6478

Doc: 14

Filed: 09/23/2015

Pg: 2 of 5

PER CURIAM:
Dominique

Jones

appeals

the

district

court’s

orders

dismissing his 28 U.S.C. § 2255 (2012) motion as successive but
unauthorized, and treating his Fed. R. Civ. P. 60(b) motion as a
successive § 2255 motion and dismissing it on the same basis.
On appeal, Jones re-asserts his challenges to his underlying
conviction, and argues that his postjudgment motion is not a
successive § 2255 motion, but is in fact a true Rule 60(b)
motion.
To

the

extent

Jones

appeals

from

the

district

court’s

dismissal of his § 2255 motion, he needs a circuit justice or
judge

to

proceed.

issue

a

certificate

of

28 U.S.C. § 2253(c)(1)(B)

appealability
(2012).

in

order

to

A certificate of

appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2012).

28 U.S.C. § 2253(c)(2)

When, as here, 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

right.

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

Federal
successive”
absent

claim

prisoners
collateral

preauthorization

U.S.C. § 2255(h).

are

of

the

denial

prohibited

attacks
from

on

a

a

of

from

a

constitutional

filing

conviction

federal

circuit

“second
or

or

sentence

court.

28

Because Jones fails to demonstrate that the
2

Appeal: 15-6478

Doc: 14

Filed: 09/23/2015

Pg: 3 of 5

district court’s ruling that he lacked authorization to submit a
successive § 2255 motion was debatable, we deny a certificate of
appealability and dismiss this portion of the appeal.
Jones

does

not,

appealability

in

postjudgment

motion

however,

order
was

for
a

§

motion, or a hybrid of both.
392, 400 (4th Cir. 2015).

us
2255

require
to

a

certificate

determine

motion,

a

whether

true

of
his

Rule

60(b)

United States v. McRae, 793 F.3d

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 of claims not presented in a prior
application.’”

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

(4th Cir. 2003) (quoting Calderon v. Thompson, 523 U.S. 538, 553
(1998)).

In

distinguishing

reconsideration

and

a

between

successive

a

proper

application,

we

motion
have

for

stated

that “a motion directly attacking the prisoner’s conviction or
sentence will usually amount to a successive application, while
a motion seeking a remedy for some defect in the collateral
review

process

reconsider.”

will

generally

be

deemed

a

proper

motion

to

Id. at 207.

After reviewing the record, we conclude that the district
court

properly

successive

§

construed

2255

motion

Jones’

postjudgment

because

in

3

it,

Jones

motion

as

attacks

a
his

Appeal: 15-6478

Doc: 14

conviction

Filed: 09/23/2015

without

attempting

collateral review process.

Pg: 4 of 5

to

remedy

some

defect

in

the

Because Jones previously filed a

§ 2255 motion and has not received authorization to submit a
successive § 2255 motion, we affirm the district court’s order
dismissing

his

postjudgment

motion,

reconstrued

as

a

§

2255

motion, for want of jurisdiction.
Under our holding in Winestock, we must construe Jones’
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).
criteria.

Jones’ claims satisfy neither of these

Therefore, we deny authorization to file a successive

§ 2255 motion.
We

also

deny

default judgment.
facts

and

legal

Jones’

motions

to

appoint

counsel

and

for

We dispense with oral argument because the
contentions

are

4

adequately

presented

in

the

Appeal: 15-6478

Doc: 14

materials

before

Filed: 09/23/2015

this

court

Pg: 5 of 5

and

argument

would

not

aid

the

decisional process.
DISMISSED IN PART;
AFFIRMED IN PART

5