United States v. Saunders

70 F. App'x 143

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6581

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDWARD HAROLD SAUNDERS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CR-94-17-11, CA-03-98-3)

Submitted: July 24, 2003 Decided: July 30, 2003

Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Edward Harold Saunders, Jr., Appellant Pro Se. Jennifer Marie Hoefling, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Edward Harold Saunders, Jr., seeks to appeal the district

court’s order denying his application for relief from judgment, in

which he challenged his conviction for conspiracy to possess with

intent to distribute cocaine based upon newly discovered evidence

allegedly showing that he is actually innocent. The district court

construed Saunders’ pleading as a motion filed under 28 U.S.C.

§ 2255 (2000), and denied the motion as successive, noting that

Saunders had not sought authorization from this court to file such

a motion. This court may grant a certificate of appealability to

appeal the denial of a § 2255 motion only if Saunders makes a

substantial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2) (2000). Where, as here, a district court

dismisses a § 2255 motion on procedural grounds, a certificate of

appealability will not issue unless the movant can demonstrate “(1)

‘that jurists of reason would find it debatable whether the

[motion] states a valid claim of the denial of a constitutional

right’ and (2) ‘that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.’”

Rose v. Lee, 252 F.3d 676, 684 (4th Cir.) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)), cert. denied, 534 U.S. 941

(2001). We have independently reviewed the record and Saunders’

informal brief and conclude that Saunders has not made the

requisite showing. See Miller-El v. Cockrell, 537 U.S. 322 (2003).

2 We therefore deny a certificate of appealability and dismiss the

appeal.

Pursuant to our decision in United States v. Winestock,

F.3d , 2003 WL 1949822, at *7 (4th Cir. Apr. 25, 2003), we

construe Saunders’ notice of appeal and informal brief on appeal as

an application to file a second or successive motion to vacate

under 28 U.S.C. § 2255. In order to obtain authorization to file

a successive § 2255 motion, a movant 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)(3)(C), 2255 ¶ 8 (2000). Saunders’

claims do not satisfy either of these conditions. Therefore, we

decline to authorize Saunders 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