United States v. Davis

133 F. App'x 916

Opinion

PER CURIAM:

Percell A. Davis filed a notice of appeal seeking review of his sentence under the Supreme Court’s recent decisions in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We construe Davis’s notice of appeal and informal brief as a motion for authorization to file a second or successive motion under 28 U.S.C. § 2255 (2000).

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, 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. 28 U.S.C. §§ 2244(b)(2), 2255 (2000). Davis’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion and dismiss Davis’s appeal. 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