United States v. Butts

366 F. App'x 477

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7802

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LORENZO BUTTS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:00-cr-00067-JBF-1)

Submitted: February 18, 2010 Decided: February 24, 2010

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Lorenzo Butts, Jr., Appellant Pro Se. Kevin Michael Comstock, Joseph Evan DePadilla, Assistant United States Attorneys, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Lorenzo Butts, Jr., 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, and denying his motion for recusal.

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 Butts has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal. We deny the Government’s motion to consolidate with

Appeal No. 09-7803.

Additionally, we construe Butts’s notice of appeal and

informal brief as an application to file a second or successive

2 motion under 28 U.S.C.A. § 2255. 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: (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). Butts’s

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