United States v. Cline

430 F. App'x 212

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 11-6119

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

OCTAVIUS S. CLINE, a/k/a Toby,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior District Judge. (6:02-cr-01358-HMH-12; 6:07-cv-70092-HMH; 6:09- cv-70104-HMH; 6:10-cv-70303-HMH)

Submitted: May 19, 2011 Decided: May 24, 2011

Before TRAXLER, Chief Judge, and AGEE and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Octavius S. Cline, Appellant Pro Se. Maxwell B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Octavius S. Cline 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. 2010) 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). 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 Cline has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

2 Additionally, we construe Cline’s 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: (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. 2010). Cline’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