United States v. Milton

139 F. App'x 597

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-6215

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GREGORY ALLEN MILTON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (CR-95-74; CA-00-31-7)

Submitted: June 27, 2005 Decided: July 28, 2005

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Gregory Allen Milton, Appellant Pro Se. Thomas Jack Bondurant, Jr., Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gregory A. Milton seeks to appeal the district court’s

orders denying as successive his Fed. R. Civ. P. 60(b) motion

seeking reconsideration of the court’s order denying relief on his

motion for post-conviction relief filed under 28 U.S.C. § 2255

(2000), denying his motion to alter or amend judgment, and denying

his motion for additional findings. The orders are not appealable

unless a circuit justice or judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1) (2000); Jones v. Braxton,

392 F.3d 683, 688 (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 both that the district court’s assessment of his

constitutional claims is debatable or wrong and that any

dispositive procedural rulings by the district court are also

debatable or wrong. 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 Milton has not made the requisite

showing. Accordingly, we deny Milton’s motions to place his appeal

in abeyance as moot, deny Milton’s motion requesting leave to file

a supplemental informal brief, deny a certificate of appealability,

and dismiss the appeal.

- 2 - Additionally, we construe Milton’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

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). Milton’s claims do not satisfy either of these conditions.

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

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