US v. Ronnie Rainey
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00199-D-1 Copies to all parties and the district court/agency. . Mailed to: Ronnie Rainey. [17-6713]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
RONNIE D. RAINEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Clinton. James C. Dever III, Chief District Judge. (5:10-cr-00199-D-1)
Submitted: September 26, 2017
Decided: September 28, 2017
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit
Dismissed by unpublished per curiam opinion.
Ronnie D. Rainey, Appellant Pro Se. Jason Harris Cowley, Jennifer P. May-Parker, Evan
Rikhye, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Ronnie D. Rainey appeals from the district court’s order denying his “Motion to
Conduct an Evidentiary Hearing to Establish a Record for Judicial Review” as a
successive 28 U.S.C. § 2255 (2012) motion. We conclude, as did the district court, that
Rainey’s motion is in substance a successive § 2255 motion; therefore, 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).
We have independently reviewed the record and conclude that Rainey has not
made the requisite showing. Rainey’s motion challenged the validity of his conviction
and therefore was properly construed as a successive § 2255 motion. See United States v.
Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (“[A] motion directly attacking the
application . . . .”). In the absence of pre-filing authorization from this court, the district
court lacked jurisdiction to hear a successive § 2255 motion.
See 28 U.S.C.
§§ 2244(b)(3), 2255(h) (2012).
Accordingly, we deny a certificate of appealability and dismiss the appeal of the
district court’s order.
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.
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