United States v. Price

141 F. App'x 106

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-6368

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DANNY PRICE,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (CA-02-4273; CR-00-780)

Submitted: May 23, 2005 Decided: August 18, 2005

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Danny Price, Appellant Pro Se. Mark C. Moore, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Danny Price, a federal prisoner, seeks to appeal the

district court order denying his Fed. R. Civ. P. 60(b) motion to

reconsider the denial of his underlying 28 U.S.C. § 2255 (2000)

motion. An appeal may not be taken from the final order in a

§ 2255 proceeding unless a circuit justice or judge issues a

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

claims are debatable and 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 Price has

not made the requisite showing. Accordingly, we deny a certificate

of appealability and dismiss the appeal.*

Additionally, we construe Price’s notice of appeal and

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

* We note the district court should have dismissed the motion for lack of jurisdiction as a successive motion. See United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003). Nonetheless, Price fails to establish the criteria for issuance of a certificate of appealability. See Reid v. Angelone, 369 F.3d 363, 368-69 (4th Cir. 2004).

- 2 - successive § 2255 motion. See Winestock, 340 F.3d at 208. 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 sufficient to establish that no reasonable fact

finder would have found the movant guilty. 28 U.S.C.

§§ 2244(b)(3)(C), 2255 (2000). Price’s claims do not satisfy

either of these conditions. Therefore, we decline to grant Price

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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