United States v. Jones

179 F. App'x 875

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7054

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JASON DORIAN JONES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (CR-95-94; CA-05-209-5)

Submitted: May 16, 2006 Decided: May 18, 2006

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jason Dorian Jones, Appellant Pro Se. Frank DeArmon Whitney, United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jadon Dorian Jones seeks to appeal the district court’s

order and judgment dismissing without prejudice his 28 U.S.C.

§ 2255 (2000) motion because it was successive. An appeal may not

be taken from the final order in a § 2255 proceeding 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 ruling by the district court is likewise

debatable. 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 Jones has not made the requisite showing.

Additionally, we construe Jones’ 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. 2003). 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

- 2 - collateral review; or (2) newly discovered evidence sufficient to

establish that no reasonable fact finder would have found the

movant guilty. 28 U.S.C. §§ 2244(b)(3)(C), 2255 (2000). Jones’

claim does not satisfy either of these conditions.

For these reasons, we deny a certificate of

appealability, decline to authorize Jones to file a successive

§ 2255 motion, and dismiss the appeal. 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

- 3 -