United States v. McKelvey

Fourth Circuit

United States v. McKelvey

152 F. App'x 300

Court of Appeals for the Fourth Circuit·Decided October 31, 2005·No. No. 05-7135·Published

Opinion

PER CURIAM:

Steven McKelvey seeks to appeal the district court’s order denying relief on his motion filed under Fed.R.Civ.P. 60(b). To appeal an order denying a Rule 60(b) motion in a postconviction proceeding, McKelvey must establish his entitlement to a certificate of appealability. 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) (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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that McKelvey has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.

Additionally, we construe McKelvey’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. § 2255 (2000). United, States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a movant 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 sufficient to establish that no reasonable factfinder would have found the petitioner guilty of the offense. 28 U.S.C. § 2255 If 8. McKelvey’s claims do not satisfy either of these standards. Therefore, we decline to authorize 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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PER CURIAM:

Steven McKelvey seeks to appeal the district court’s order denying relief on his motion filed under Fed.R.Civ.P. 60(b). To appeal an order denying a Rule 60(b) motion in a postconviction proceeding, McKelvey must establish his entitlement to a certificate of appealability. 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) (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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that McKelvey has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.

Additionally, we construe McKelvey’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. § 2255 (2000). United, States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a movant 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 sufficient to establish that no reasonable factfinder would have found the petitioner guilty of the offense. 28 U.S.C. § 2255 If 8. McKelvey’s claims do not satisfy either of these standards. Therefore, we decline to authorize 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

United States v. McKelvey, 152 F. App'x 300 (4th Cir. 2005).

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