United States v. Neal

124 F. App'x 797

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7942

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES NEAL, III, a/k/a Sonny,

Defendant - Appellant.

No. 04-7946

JAMES NEAL, III,

Petitioner - Appellant,

Respondent - Appellee.

Appeals from the United States District Court for the District of South Carolina, at Rock Hill. Cameron McGowan Currie, District Judge. (CR-94-27; CA-96-1624-0)

Submitted: March 24, 2005 Decided: March 30, 2005 Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

James Neal, III, Appellant Pro Se. Marvin Jennings Caughman, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

- 2 - PER CURIAM:

James Neal, III, a federal prisoner, seeks to appeal the

district court’s orders denying relief on his motions filed

pursuant to Fed. R. Civ. P. 15(c) and Fed R. Crim. P. 12(b), which

the district court construed as successive motions under 28 U.S.C.

§ 2255 (2000), and dismissed for lack of jurisdiction. The orders

are not appealable unless a circuit justice or judge issues a

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

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 that the district court’s assessment

of his constitutional claims is debatable or wrong and that any

dispositive procedural rulings by the district court also are

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, 683-84 (4th Cir. 2001). We have independently

reviewed the record and conclude that Neal has not made the

requisite showing. Accordingly, we deny Neal’s motion for

certificates of appealability and dismiss the appeals.

Additionally, we construe Neal’s notices of appeal and

informal brief on appeal as an application to file a second or

successive § 2255 motion. See United States v. Winestock, 340 F.3d

- 3 - 200, 208 (4th Cir.), cert. denied, 540 U.S. 995 (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 movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2),

2255 (2000). Neal’s claims do not satisfy either of these

conditions. Therefore, we decline to authorize Neal 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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