United States v. Martin

178 F. App'x 209

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6242

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FENCEL O’HARA MARTIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:88-cr-00076-JCC-JF)

Submitted: May 16, 2006 Decided: May 23, 2006

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Fencel O’Hara Martin, 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Unpublished opinions are not binding precedent in this circuit.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:

Fencel O’Hara Martin seeks to appeal the district court’s

order denying relief on his motion filed under 18 U.S.C.

§ 3582(c)(2) (2000), which the court construed under 28 U.S.C.

§ 2255 (2000). The order is not appealable 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 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 Martin

has not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal.

Additionally, we construe Martin’s notice of appeal and

informal brief on appeal 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 file a successive § 2255 motion, a prisoner must

assert claims based on either: (1) a new rule of constitutional

- 2 - law, previously unavailable, made retroactive by the Supreme Court

to cases on collateral review; or (2) newly discovered evidence

that would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the

petitioner guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255

(2000). Martin’s claims do not satisfy either of these conditions.

We therefore 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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