US v. John Tyer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00238-F-3,5:13-cv-00449-F Copies to all parties and the district court/agency. [999952147]. Mailed to: J Tyer. [16-6771]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6771

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN TAYLOR TYER,
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-00238-F-3; 5:13-cv-00449-F)

Submitted:

October 18, 2016

Decided:

October 21, 2016

Before WILKINSON, KING, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

John Taylor Tyer, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Taylor Tyer seeks to appeal the district court’s order
denying relief on his motion to reconsider, under Fed. R. Civ.
P. 60(b), the court’s earlier order dismissing his 28 U.S.C. §
2255

(2012)

motion.

The

order

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

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
Tyer has not made the requisite showing.
lacked

jurisdiction

to

deny

Tyer’s

Rule

The district court
60(b)

motion

on

the

merits because the claims he raised challenged the validity of
his convictions, and thus the motion should have been construed
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as a successive § 2255 motion.

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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)

authorization

(same).

from

this

In
court,

the
the

absence
district

jurisdiction to hear a successive § 2255 motion.

of

prefiling

court

lacked

See 28 U.S.C.

§ 2244(b)(3) (2012).
Accordingly,

we

dismiss the appeal.
facts

and

materials

legal
before

deny

a

certificate

of

appealability

and

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
DISMISSED

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