United States v. Andrews

371 F. App'x 450

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6158

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CARLOS TOLSON ANDREWS, a/k/a Crip Los,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:06-cr-00017-LMB-2; 1:09-cv-00461-LMB)

Submitted: March 30, 2010 Decided: April 6, 2010

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Carlos Tolson Andrews, Appellant Pro Se. Derek Andreson, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Carlos Tolson Andrews seeks to appeal the district

court’s order treating his Fed. R. Civ. P. 60(b) motion as a

successive 28 U.S.C.A. § 2255 (West Supp. 2009) 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) (2006); Reid v. Angelone,

369 F.3d 363, 369 (4th Cir. 2004). 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)

(2006). A prisoner satisfies this standard by demonstrating

that reasonable jurists would find that any assessment of the

constitutional claims by the district court is debatable or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable. Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have

independently reviewed the record and conclude that Andrews has

not made the requisite showing. Accordingly, we deny Andrews’

motion for a certificate of appealability and dismiss the

appeal.

Additionally, we construe Andrews’ notice of appeal

and informal brief as an application to file a second or

successive motion under 28 U.S.C.A. § 2255. United States v.

2 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, not previously discoverable by due

diligence, that would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the movant guilty of the

offense; or (2) a new rule of constitutional law, previously

unavailable, made retroactive by the Supreme Court to cases on

collateral review. 28 U.S.C.A. § 2255(h) (West Supp. 2009).

Andrews’ 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 the court and argument would not aid the decisional

process.

DISMISSED