US v. Billy Joe Collin
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying authorization to file a successive 2255 motion  Originating case number: 1:07-cr-00375-NCT-4,1:17-cv-00371-NCT-JLW. Copies to all parties and the district court/agency. . Mailed to: Billy Joe Collins. [17-6895]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
BILLY JOE COLLINS, a/k/a B.J.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00375-NCT-4;
Submitted: September 26, 2017
Decided: September 28, 2017
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit
Dismissed by unpublished per curiam opinion.
Billy Joe Collins, Appellant Pro Se. Randall Stuart Galyon, OFFICE OF THE UNITED
STATES ATTORNEY, Robert Michael Hamilton, Angela Hewlett Miller, Assistant
United States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Billy Joe Collins seeks to appeal the district court’s order adopting the
recommendation of the magistrate judge, construing his self-styled “Motion to Vacate
Judgment Pursuant to [Fed. R. Civ. P.] 60(b)” 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 484-85.
We have independently reviewed the record and conclude that Collins has not
made the requisite showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal.
Additionally, we construe Collins’ 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). Collins’ 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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