United States v. Gormley

139 F. App'x 592

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 27, 2005
• Docket: 05-6638
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-6638

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PURVIS H. GORMLEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (CR-96-6-V; CA-04-613-1-V)

Submitted: July 14, 2005 Decided: July 27, 2005

Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Purvis H. Gormley, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Purvis H. Gormley seeks to appeal the district court’s

order dismissing his “Motion for Relief from Final Judgment

[Pursuant to Fed. R. Civ. P. 60(b)], or Alternatively, Petition for

a Writ of Audita Querela,” as a successive 28 U.S.C. § 2255 (2000)

motion. 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, 370 (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) (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 (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 Gormley has not made the requisite

showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal.

Additionally, we construe Gormley’s notice of appeal and

informal brief as an application to file a second or successive

motion under 28 U.S.C. § 2255. United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to

- 2 - 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). Gormley’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

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