United States v. Bowens

167 F. App'x 969

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 22, 2006
• Docket: 05-7365
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7365

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SPENCER BOWENS, a/k/a Melvin McCurdy, a/k/a Doc Johnson, a/k/a Scooter, a/k/a Clyde,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (CR-98-110; CA-02-211-3)

Submitted: February 16, 2006 Decided: February 22, 2006

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Spencer Bowens, Appellant Pro Se. David John Novak, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Spencer Bowens, a federal prisoner, seeks to appeal the

district court’s order construing his Fed. R. Civ. P. 60(b) motion

and alternative request for a writ of coram nobis as an

unauthorized successive motion filed under 28 U.S.C. § 2255 (2000),

and dismissing for lack of jurisdiction. The order is not

appealable unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone,

369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability

will not issue for claims addressed by a district court 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 both 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 Bowens

has not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal.

Additionally, we construe Bowens’s notice of appeal and

informal brief on appeal as an application to file a second or

successive motion under 28 U.S.C. § 2255. See 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) a new rule of constitutional

law, previously unavailable, made retroactive by the Supreme Court

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

that would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the

petitioner guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255

(2000). Bowens’s claims do not satisfy either of these conditions.

We therefore 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

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