US v. Brian Rogers

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to amend/correct [999667182-2]; denying Motion to supplement [999667182-3] Originating case number: 3:10-cr-00235-FDW-1,3:13-cv-00657-FDW Copies to all parties and the district court/agency. [999744350]. Mailed to: Brian Rogers. [15-7333]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7333

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN KEITH ROGERS,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:10-cr-00235-FDW-1; 3:13-cv-00657-FDW)

Submitted:

January 15, 2016

Decided:

January 29, 2016

Before NIEMEYER, KING, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Brian Keith Rogers, Appellant Pro Se.
William A. Brafford,
Cortney Randall, Assistant United States Attorneys, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brian Keith Rogers seeks to appeal the district court’s
order denying Rogers’ Fed. R. Civ. P. 60(b) motion for relief
from the court’s prior judgment * in light of Johnson v. United
States, 135 S. Ct. 2551 (2015).
unless

a

circuit

appealability.

justice

or

The order is not appealable

judge

issues

a

28 U.S.C. § 2253(c)(1)(B) (2012).

certificate

of

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

the

prisoner

procedural

ruling

must
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
Rogers has not made the requisite showing.

*

The district court

The Rule 60(b) motion was filed in Rogers’ 28 U.S.C.
§ 2255 (2012) postconviction proceeding.

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lacked jurisdiction to deny Rogers’ Rule 60(b) motion on the
merits because the claim he raised challenged the validity of
his career offender sentence, and thus the motion should have
been construed as a successive 28 U.S.C. § 2255 motion.

See

Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005) (explaining how
to differentiate a true Rule 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).

In the

absence of prefiling authorization from this court, the district
court lacked jurisdiction to hear a successive § 2255 motion.
See 28 U.S.C. § 2244(b)(3) (2012).
Accordingly,

we

dismiss the appeal.

deny

a

certificate

of

appealability

and

We also deny Rogers’ motion to amend his

informal brief to add a new challenge to his sentence that was
not previously presented to the district court.

Rogers remains

free, however, to pursue the legal issues identified in his Rule
60(b)

motion,

and

motion

to

amend

his

informal

motion pursuant to 28 U.S.C. § 2244 (2012).
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

brief,

in

a

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
DISMISSED

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