United States v. Sheppard

390 F. App'x 264

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6679

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

BRADLEY SHANE SHEPPARD,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:04-cr-00420-HMH-1)

Submitted: July 27, 2010 Decided: August 9, 2010

Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Bradley Shane Sheppard, Appellant Pro Se. Alan Lance Crick, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Bradley Shane Sheppard seeks to appeal the district

court’s order denying his Fed. R. Civ. P. 60(b) motion for

reconsideration of his sentence. The order is not appealable

unless a circuit justice or judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1) (2006). 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)

(2006). When the district court denied relief on the merits, a

prisoner satisfies this standard by demonstrating that

reasonable jurists would find the district court’s assessment of

the constitutional claims is debatable or wrong. Slack v.

McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell,

537 U.S. 322, 336-38 (2003). When the district court denies

relief on procedural grounds, the prisoner must demonstrate both

that the dispositive procedural ruling in debatable, and that

the motion states a debatable claim of the denial of a

constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude

that Sheppard has not made the requisite showing. The district

court lacked jurisdiction to deny Sheppard’s Rule 60(b) motion

on the merits because the claim he raised challenged the

validity of his sentence, and thus the motion should have been

construed as a successive 28 U.S.C.A. § 2255 (West Supp. 2010)

2 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005)

(explaining how to differentiate a true Rule 60(b) motion from

an unauthorized second or successive habeas corpus petition);

United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003)

(same). In the absence of pre-filing authorization from this

court, the district court lacked jurisdiction to hear a

successive § 2255 motion. See 28 U.S.C. § 2244(b)(3) (2006).

Accordingly, we deny a certificate of appealability and dismiss

the appeal. 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