US v. Eugene Cousin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:06-cr-00008-GEC-RSB-1,5:15-cv-80858-GEC-RSB Copies to all parties and the district court/agency. [999949368]. Mailed to: Eugene Cousins. [16-7062]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7062

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EUGENE ROSS COUSINS,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge. (5:06-cr-00008-GEC-RSB-1; 5:15-cv-80858-GEC-RSB)

Submitted:

October 13, 2016

Decided:

October 18, 2016

Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Eugene Ross Cousins, Appellant Pro Se.
Grayson A. Hoffman,
Assistant United States Attorney, Harrisonburg, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eugene Ross Cousins seeks to appeal the district court’s order
denying relief on 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.”
§ 2253(c)(2) (2012).

28 U.S.C.

When the district court denies relief on the

merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district 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).

When 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 claim of the denial of a constitutional right.
Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Cousins has not made the requisite showing.

Accordingly, we deny

a certificate of appealability and dismiss the appeal.
Additionally,

we

construe

Cousins’

notice

of

appeal

and

informal brief as an application to file a second or successive
§ 2255 motion.

United States v. Winestock, 340 F.3d 200, 208 (4th

2

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Cir. 2003).

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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).
these

criteria.

Cousins’ claims do not satisfy either of

Therefore,

we

deny

authorization

to

file

a

successive § 2255 motion.
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.

DISMISSED

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