United States v. Groom

432 F. App'x 181

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7432

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PORTEAL GROOM,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Peter J. Messitte, Senior District Judge. (1:95-cr-00294-3; 8:99-cv-02881-PJM)

Submitted: May 26, 2011 Decided: May 31, 2011

Before KING, SHEDD, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Porteal Groom, Appellant Pro Se. David Ira Salem, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Porteal Groom seeks to appeal the district court’s

text orders denying his motion to reinstate his 28 U.S.C.A.

§ 2255 (West Supp. 2010) motion, and denying his 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)(A) (2006). 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). When the

district court denies relief on the merits, a prisoner satisfies

this standard by demonstrating that reasonable jurists would

find that the district court’s assessment of the constitutional

claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,

484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38

(2003). When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the motion states a

debatable claim of the denial of a constitutional right. Slack,

529 U.S. at 484-85. We have independently reviewed the record

and conclude that Groom has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

Additionally, although Groom characterizes his motion

to reinstate his § 2255 motion as a Fed. R. Civ. P. 60(b)

2 motion, we conclude that it is a successive § 2255 motion.

Accordingly, we construe Groom’s notice of appeal and informal

brief as an application to file a second or successive § 2255

motion. 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) (West Supp. 2010).

Groom’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