US v. Dwayne McFadden


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:04-cr-00564-TLW-1 Copies to all parties and the district court/agency. [999721093]. Mailed to: McFadden. [15-7191]

Download PDF
Appeal: 15-7191 Doc: 7 Filed: 12/18/2015 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7191 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DWAYNE MCFADDEN, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Chief District Judge. (4:04-cr-00564-TLW-1) Submitted: December 8, 2015 Before SHEDD and Circuit Judge. AGEE, Circuit Decided: Judges, and December 18, 2015 HAMILTON, Senior Affirmed in part and dismissed in part by unpublished per curiam opinion. Dwayne McFadden, Appellant Pro Se. Rose Mary Parham, PARHAM LAW OFFICE, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-7191 Doc: 7 Filed: 12/18/2015 Pg: 2 of 3 PER CURIAM: Dwayne McFadden seeks to appeal the district court’s order denying his motion for a new trial. With respect to the portion of the district court’s order denying relief under Fed. R. Crim. P. 33, we have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order in part for the reasons stated by the district court. United States v. McFadden, No. 4:04-cr-00564-TLW-1 (D.S.C. June 3, 2015). The portion of the district court’s order construing the new trial motion as seeking relief under 28 U.S.C. § 2255 (2012) and denying such relief to McFadden is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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 the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief demonstrate both on procedural that the When the district court grounds, dispositive 2 the prisoner procedural ruling must is Appeal: 15-7191 Doc: 7 Filed: 12/18/2015 Pg: 3 of 3 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 McFadden has not made the requisite showing. lacked jurisdiction to deny § 2255 The district court relief on the merits. McFadden’s motion challenged the validity of his sentence. The motion was properly construed as a successive § 2255 motion, see Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005) (explaining how to differentiate a true Fed. R. Civ. P. 60(b) motion from an unauthorized second or successive habeas corpus petition); United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (same), but should have been dismissed for lack of jurisdiction in light of the absence of pre-filing authorization from this court. See 28 U.S.C. § 2244(b)(3) (2012); Winestock, 340 F.3d at 205. Accordingly, we deny a dismiss the appeal in part. certificate of appealability and 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. AFFIRMED IN PART AND DISMISSED IN PART 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?