US v. Lorenzo Stephen
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:06-cr-00281-HEH-1,3:16-cv-00911-HEH Copies to all parties and the district court/agency. . Mailed to: Lorenzo Stephens. [17-6147]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
LORENZO DESHON STEPHENS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, District Judge. (3:06-cr-00281-HEH-1; 3:16-cv-00911HEH)
Submitted: May 23, 2017
Decided: May 26, 2017
Before KING, AGEE, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Lorenzo Deshon Stephens, Appellant Pro Se. Michael Calvin Moore, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Lorenzo Deshon Stephens seeks to appeal the district court’s order treating his
Fed. R. Civ. P. 60(d)(3) motion as a successive 28 U.S.C. § 2255 (2012) motion, and
dismissing it on that basis. 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.” 28 U.S.C. § 2253(c)(2) (2012). 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
We have independently reviewed the record and conclude that Stephens has not
made the requisite showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal.
Additionally, we construe Stephens’ 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 Cir. 2003). In order to obtain authorization to file a successive § 2255
motion, a prisoner must assert claims based on either:
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(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). Stephens’ claims do not satisfy either of these criteria. 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
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