United States v. Spalding

177 F. App'x 313

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7594

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERTO SPALDING,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (CR-90-105)

Submitted: April 20, 2006 Decided: April 25, 2006

Before MICHAEL, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Roberto Spalding, Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Roberto Spalding seeks to appeal the district court’s

order denying relief on his Fed. R. Civ. P. 60(b) motion, which the

district court properly construed as a successive 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 that the district

court’s assessment of his constitutional claims is debatable or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable. 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 that Spalding has

not made the requisite showing.

Additionally, we construe Spalding’s notice of appeal and

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

successive § 2255 motion. See United States v. Winestock, 340 F.3d

200, 208 (4th Cir. 2003). 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

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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).

Spalding’s claim does not satisfy either of these conditions.

For these reasons, we deny a certificate of

appealability, decline to authorize Spalding to file a successive

§ 2255 motion, 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

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