US v. Winston Poyer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999956070-2] Originating case number: 3:04-cr-00162-FDW-1,3:16-cv-00672-FDW Copies to all parties and the district court/agency. [1000032176].. [16-7340]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7340

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINSTON DARIN POYER,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney, Chief
District Judge. (3:04-cr-00162-FDW-1; 3:16-cv-00672-FDW)

Submitted:

February 23, 2017

Decided:

February 28, 2017

Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Winston Darin Poyer, Appellant Pro Se.
Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Winston

Darin

Poyer

appeals

the

district

court’s

order

treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.
§

2255

(2012)

motion

and

dismissing

it

on

that

basis.

A

certificate of appealability is not required in order for us to
address the district court’s jurisdictional categorization of a
“Rule 60(b) motion as an unauthorized successive habeas petition.”
United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).

Our

review of the record confirms that Poyer sought successive § 2255
relief, without authorization from this court, and we therefore
hold that the district court properly concluded that it lacked
jurisdiction

to

consider

the

subject

§§ 2244(b)(3)(A), 2255(h) (2012).

motion.

28

U.S.C.

Thus, we affirm the district

court’s order.
Additionally,

we

construe

Poyer’s

notice

of

appeal

and

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

See United States v. Winestock, 340 F.3d 200, 208

(4th Cir. 2003).

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

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(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).
criteria.

Therefore, we deny authorization to file a successive

§ 2255 motion.
pauperis.

Poyer’s claims do not satisfy either of these

We grant Poyer’s motion to proceed in forma

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

3