United States v. Freeman

108 F. App'x 783

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6910

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHNEY FREEMAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (CR-88-76; CA-97-409-2)

Submitted: August 26, 2004 Decided: September 3, 2004

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

Dismissed by unpublished per curiam opinion.

Johney Freeman, Appellant Pro Se. Robert Joseph Seidel, Jr., Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Johney Freeman seeks to appeal the district court’s order

denying relief on his Fed. R. Civ. P. 60(b) motion filed in his 28

U.S.C. § 2255 (2000) action. The court dismissed the action as

successive. The order is not appealable unless a circuit justice

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

§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 368-69 (4th

Cir. 2004) (holding that appeal from the denial of a Fed. R. Civ.

P. 60(b) motion in a habeas action requires a certificate of

appealablity). 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

his constitutional claims are debatable and that any dispositive

procedural rulings by the district court are also 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 (4th Cir. 2001). We have independently reviewed the

record and conclude that Freeman has not made the requisite

showing. Accordingly, we deny a certificate of appealability.

To the extent Freeman’s notice of appeal and informal

brief could be construed as a motion for authorization to file a

successive § 2255 motion, we deny such authorization. United

States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied,

124 S. Ct. 496 (2003). 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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