United States v. Evans

62 F. App'x 549

Opinion

PER CURIAM.

Ronald Jourdan Evans appeals the district court’s order construing his motion under Fed.R.Civ.P. 60(b), in which he sought to challenge the denial of a motion for reduction of sentence, as a successive motion under 28 U.S.C. § 2255 (2000), and dismissing the motion without prejudice. We find no error in the construction of Evans’s motion as a successive § 2255 motion.

An appeal may not be taken from the final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). When, as here, a district court dismisses a § 2255 motion on procedural grounds, a certificate of appealability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right’ and (2) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’ ” Rose v. Lee, 252 F.3d 676, 684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), cert. denied, 534 U.S. 941, 112 S.Ct. 318, 151 L.Ed.2d 237 (2001). We have independently reviewed the record and conclude that Evans has not made the requisite showing. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appealability and dismiss the 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.