United States v. Davis

312 F. App'x 550

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8475

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROBERT HENRY DAVIS, a/k/a Pops,

Defendant – Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:00-cr-00424-PJM-2; 8:08-cv-02777-PJM)

Submitted: February 19, 2009 Decided: February 27, 2009

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert Henry Davis, Appellant Pro Se. John Walter Sippel, Jr., Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Henry Davis seeks to appeal the district

court’s orders treating his Fed. R. Civ. P. 60(b) motions as

successive and unauthorized 28 U.S.C.A. § 2255 (West 2006 &

Supp. 2008) motions, and dismissing them on that basis. The

orders are 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 Davis has not made the requisite showing.

Accordingly, we grant Davis’s motion to supplement his appeal,

deny a certificate of appealability and dismiss the appeal.

Additionally, we construe Davis’s notice of appeal,

informal brief, and motion to supplement as an application to

file a successive motion under 28 U.S.C. § 2255. United States

2 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) 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 (2006). Davis’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