United States v. Simpson

300 F. App'x 218

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6957

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CHAD ERIC SIMPSON,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:01-cr-00189-GCM-4; 3:08-cv-00197-GCM)

Submitted: November 13, 2008 Decided: November 19, 2008

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Chad Eric Simpson, Appellant Pro Se. Gretchen C.F. Shappert, United States Attorney, Robert James Conrad, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Chad Eric Simpson seeks to appeal the district court=s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008)

motion. The order is not appealable 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 Aa 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 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 that Simpson has

not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal.

Additionally, Simpson seeks to appeal the district

court=s dismissal of his motion filed under Fed. R. Civ. P. 59(e)

as a second or successive § 2255 motion. We construe Simpson=s

notice of appeal and informal brief as an application to file a

second or successive motion under § 2255. United States v.

Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to file a successive 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, 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. 28 U.S.C. § 2244(b)(2) (2006), § 2255(h). Simpson=s

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

deny 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