United States v. Morgan

178 F. App'x 202

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6294

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRED T. MORGAN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (3:97-cr-00083-jhm-AL; 7:05-cv-00224-jct-mf)

Submitted: April 20, 2006 Decided: April 26, 2006

Before MICHAEL, KING, and DUNCAN, Circuit Judges.

Affirmed in part, and dismissed in part by unpublished per curiam opinion.

Fred T. Morgan, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Fred Morgan, a federal prisoner, seeks to appeal the

district court’s order dismissing his motion filed pursuant to Fed.

R. Civ. P. 60(b), which the district court construed as a

successive 28 U.S.C. § 2255 (2000) motion. The order also denied

Morgan’s motion for downward departure.

The portion of the district court’s order dismissing

Morgan’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 for claims

addressed by a district court 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. 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 that Morgan has not made the requisite

showing. Accordingly, we deny a certificate of appealability and

dismiss this portion of the appeal.

- 2 - Additionally, we construe Morgan’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. See 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). Morgan’s claims do not satisfy either of these conditions.

We therefore deny authorization to file a successive § 2255 motion.

Finally, we have reviewed the record and the district

court’s opinion and find no error in the denial of Morgan’s motion

for downward departure. Accordingly, we affirm this portion of the

district court’s order for the reasons stated by the district

court. See United States v. Morgan, Nos. 3:97-cr-00083-jhm-AL;

7:05-cv-00224-jct-mf (W.D. Va. Jan. 31, 2006). 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.

AFFIRMED IN PART; DISMISSED IN PART

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