United States v. Graham

329 F. App'x 509

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6135

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EMMETT MADISON GRAHAM, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:97-cr-00098-F-1)

Submitted: May 28, 2009 Decided: July 7, 2009

Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Emmett Madison Graham, Jr., Appellant Pro Se. Michael Gordon James, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Emmett Madison Graham, Jr., seeks to appeal the

district court’s order treating his Fed. R. Civ. P. 60(b) motion

as a successive 28 U.S.C.A. § 2255 (West Supp. 2008) motion, and

dismissing it on that basis. The order is 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 Graham has

not made the requisite showing. Accordingly, we deny Graham’s

motion for a certificate of appealability and dismiss the

appeal. We further deny Graham’s motions for bail and to

schedule a bail hearing and deny as moot Graham’s motion to

expedite review of the motion for bail or the merits of the

appeal.

2 Additionally, we construe Graham’s notice of appeal

and informal brief as an application to file a second or

successive motion under 28 U.S.C.A. § 2255. United States 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) 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; or (2) a new rule of constitutional law, previously

unavailable, made retroactive by the Supreme Court to cases on

collateral review. 28 U.S.C.A. § 2255(h). Graham’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