United States v. Miller

318 F. App'x 191

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 18, 2009
• Docket: 08-7072
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7072

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HENRY EARL MILLER,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:06-cv-00548-HFF)

Submitted: January 21, 2009 Decided: March 18, 2009

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Henry Earl Miller, Appellant Pro Se. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Henry Earl Miller seeks to appeal two orders entered

by the district court. The first order denied Miller’s Fed. R.

Civ. P. 60(b) motion for reconsideration of the district court’s

order denying relief on his letter that the court construed as a

28 U.S.C. § 2255 (2006) motion. The second order denied his

motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2)

(2006).

The order denying Miller’s Rule 60(b) motion is not

appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000);

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 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 conclude that the district court did not err in

construing Miller’s February 2006 letter as a § 2255 motion,

2 notwithstanding the delay in providing notice of that

construction pursuant to Castro v. United States, 540 U.S. 375,

383 (2003). Miller referred to the action as a § 2255 motion in

many of his pleadings, and the district court correctly assessed

that the relief he sought could only be obtained in a § 2255

proceeding. Accordingly, we deny a certificate of appealability

and dismiss the appeal.

To the extent that Miller’s Rule 60(b) motion was a

successive § 2255 motion, we construe Miller’s notice of appeal

and his informal brief filed in this court 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 law, previously unavailable, made

retroactive by the Supreme Court to cases on collateral review;

or (2) 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. 28 U.S.C. §§ 2244(b)(2), 2255 (2000). Miller’s claims

do not satisfy either of these criteria. Therefore, we deny

authorization to file a successive § 2255 motion.

3 Turning to Miller’s § 3582 motion, we have reviewed

the record and find no reversible error. Accordingly, we affirm

the district court’s order. In addition, we deny as meritless

Miller’s motions for recusal and reassignment, to expedite, to

instruct the district court to accept filing of § 2255 motion,

for immediate release pending appeal, to enforce the district

court’s order, for default judgment, for justice and due process

of law, and for answer to jurisdictional question. We also deny

his motion to compel a response to his request for admissions

and his motion to reverse his convictions.

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 IN PART; AFFIRMED IN PART