United States v. Francis

152 F. App'x 295

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7120

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RAYMOND JEROME FRANCIS,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (CR-96-21; CA-00-141)

Submitted: October 20, 2005 Decided: October 31, 2005

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Raymond Jerome Francis, Appellant Pro Se. Thomas Richard Ascik, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Raymond Jerome Francis, a federal prisoner, seeks to

appeal the district court’s orders (1) denying relief on his

petition for an exception to the mandate rule; (2) denying his

motion for reconsideration on the ground that the petition was a

successive motion under 28 U.S.C. § 2255 (2000), over which the

court lacked jurisdiction; and (3) denying his second motion for

reconsideration. The orders are not appealable unless a circuit

justice or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this

standard by demonstrating that reasonable jurists would find that

the district court’s assessment of his constitutional claims is

debatable or wrong and that any dispositive procedural rulings by

the district court also are debatable or wrong. See 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 Francis

has not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal.

Additionally, we construe Francis’ notice of appeal and

informal brief on appeal as an application to file a second or

successive § 2255 motion. See United States v. Winestock, 340 F.3d

200, 208 (4th Cir.), cert. denied, 540 U.S. 995 (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 that would be sufficient to establish by clear

and convincing evidence that no reasonable factfinder would have

found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2),

2255 (2000). Francis’ claims do not satisfy either of these

conditions. Therefore, we decline to authorize Francis 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

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