Dade v. United States

178 F. App'x 203

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6011

DAMON DADE,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-99-425; CA-01-363-1)

Submitted: April 27, 2006 Decided: May 5, 2006

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Damon Dade, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Damon Dade, a federal prisoner, seeks to appeal the

district court’s order denying relief on his Fed. R. Civ. P. 60(b)

motion. It is apparent from the record that Dade’s Rule 60(b)

motion was an attempt to file a successive 28 U.S.C. § 2255 (2000)

motion. An appeal may not be taken from the final order in a

post-conviction proceeding unless a circuit justice or judge issues

a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by

demonstrating that reasonable jurists would find that the district

court’s assessment of his constitutional claims is debatable or

wrong and that any dispositive procedural rulings by the district

court are also debatable or wrong. See Miller-El v. Cockrell, 537

U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have

independently reviewed the record and conclude that Dade has not

made the requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal.

In addition, we construe Dade’s notice of appeal and

informal brief on appeal as an application for authorization to

file a successive § 2255 motion. See United States v. Winestock,

340 F.3d 200, 208 (4th Cir. 2003). In order to obtain

- 2 - authorization to file a second § 2255 motion, a prisoner must

assert claims based on either: (1) a new rule of constitutional

law, previously unavailable, made retroactive by the Supreme Court

to cases on collateral review; or (2) newly discovered evidence

sufficient to establish that no reasonable fact finder would have

found the petitioner guilty. 28 U.S.C. § 2244(b)(3)(C) (2000).

Because Dade asserts neither a new rule of constitutional law made

retroactively applicable nor newly discovered evidence, we conclude

that he has not demonstrated grounds on which to grant

authorization under § 2244. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

DISMISSED

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