US v. Sanchez McPherson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for other relief [999642466-2]; denying Motion for transcript at government expense [999642463-2]; denying Motion to appoint/assign counsel [999642461-2] Originating case number: 2:09-cr-01348-PMD-1 Copies to all parties and the district court/agency. [999720049]. Mailed to: S. McPherson. [15-7150]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7150

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANCHEZ OZELL MCPHERSON, a/k/a Delano Jacob McPherson, a/k/a
Chez, a/k/a Delano MacPherson,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, Senior
District Judge. (2:09-cr-01348-PMD-1)

Submitted:

December 15, 2015

Before GREGORY
Circuit Judge.

and

FLOYD,

Decided:

Circuit

Judges,

December 17, 2015

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Sanchez Ozell McPherson, Appellant Pro Se.
Assistant United States Attorney, Charleston,
for Appellee.

Sean
South

Kittrell,
Carolina,

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sanchez Ozell McPherson appeals the district court’s order
denying his Fed. R. Civ. P. 60(b) motion for reconsideration of
the

district

court’s

§ 2255 (2012) motion.

order

denying

relief

on

his

28

U.S.C.

We have reviewed the record and conclude

that McPherson’s motion was not a true Rule 60(b) motion, but in
substance a successive § 2255 motion.

See United States v.

McRae, 793 F.3d 392, 399-400 (4th Cir. 2015); see also Gonzalez
v.

Crosby,

545

differentiate

a

U.S.

524,

531-32

true

Rule

60(b)

successive habeas motion).

(2005)
motion

(explaining
from

an

how

to

unauthorized

McPherson therefore is not required

to obtain a certificate of appealability to appeal the district
court’s order.
prefiling
lacked
motion.

McRae, 793 F.3d at 400.

authorization

jurisdiction

to

from
hear

this

court,

McPherson’s

In the absence of
the

district

successive

§

court
2255

See 28 U.S.C. § 2244(b)(3) (2012).

Additionally, we construe McPherson’s 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
2

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offense;

or

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(2)

a

new

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rule

of

constitutional

law,

made

retroactive to cases on collateral review by the Supreme Court,
that

was

previously

McPherson’s

claims

unavailable.

do

not

satisfy

28

U.S.C.

either

of

§

2255(h).

these

criteria.

Therefore, we deny authorization to file a successive § 2255
motion.

Accordingly, we affirm the district court’s order.

We

deny McPherson’s motions for appointment of counsel, transcripts
at

Government

dispense

with

contentions

are

expense,
oral

and

relief

argument

adequately

from

because

presented

in

judgment.

the
the

facts

We

also

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

3