United States v. Spotts

326 F. App'x 158

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6595

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KELVIN ANDRE SPOTTS,

Defendant – Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:98-cr-00047-1; 3:00-cv-00647)

Submitted: May 18, 2009 Decided: June 4, 2009

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kelvin Andre Spotts, Appellant Pro Se. John J. Frail, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kelvin Andre Spotts seeks to appeal the district

court’s order treating his Fed. R. Civ. P. 60(b) motion as a

successive 28 U.S.C.A. § 2255 (West Supp. 2008) 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 that Spotts has

not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal.

Additionally, we construe Spotts’ notice of appeal and

informal brief as an application to file a second or successive

motion under 28 U.S.C. § 2255. United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization

2 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. 2008). Spotts’ 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