United States v. Sills

332 F. App'x 4

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6901

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT EDWARD SILLS, a/k/a Bobby,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:03-cr-00148-JBF-5; 2:06-cv-00697-JBF)

Submitted: August 20, 2009 Decided: August 27, 2009

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

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Robert Edward Sills, Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Edward Sills seeks to appeal the district

court’s order treating his motion to reconsider the denial of

his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A.

§ 2255 (West Supp. 2009) motion, and dismissing it on that

basis. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (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) (2006). A prisoner satisfies

this standard by demonstrating that reasonable jurists would

find that any assessment of the constitutional claims by the

district court is debatable or wrong and that any dispositive

procedural ruling by the district court is likewise debatable.

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 Sills has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

in part the appeal.

Additionally, we construe Sills’ notice of appeal and

informal brief as an application to file a second or successive

motion under 28 U.S.C.A. § 2255. United States v. Winestock,

2 340 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) newly discovered

evidence, not previously discoverable by due diligence, that

would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no reasonable

factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, previously unavailable,

made retroactive by the Supreme Court to cases on collateral

review. 28 U.S.C.A. § 2255(h) (West Supp. 2009). Sills’ claims

do not satisfy either of these criteria. Therefore, we deny

authorization to file a successive § 2255 motion.

Insofar as Sills appeals the denial of his motion for

recusal of a United States District Judge, we affirm. Sills

failed to present any legitimate reason for seeking recusal.

Accordingly, we affirm in part and deny a certificate

of appealability and dismiss in part. 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 IN PART; AFFIRMED IN PART