United States v. Stevenson

124 F. App'x 186

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7627

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

IVAN JULIAN STEVENSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CR-93-25; CA-04-493-7-jct-mfu)

Submitted: February 25, 2005 Decided: March 22, 2005

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Ivan Julian Stevenson, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Ivan Julian Stevenson seeks to appeal the district

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

in which he sought reconsideration of the district court’s denial

of his motion under 28 U.S.C. § 2255 (2000). The order is not

appealable unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1) (2000); see Reid v.

Angelone, 369 F.3d 363, 370 (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) (2000).

A prisoner satisfies this standard by demonstrating that reasonable

jurists would find that his constitutional claims are debatable and

that any dispositive procedural rulings by the district court are

also debatable or wrong. 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 Stevenson has not made the

requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal.

Additionally, we construe Stevenson’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.), cert. denied, 124 S. Ct. 496 (2003). In order

to obtain authorization to file a successive § 2255 motion, a

- 2 - 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 sufficient to establish that no reasonable fact

finder would have found the movant guilty. 28 U.S.C.

§§ 2244(b)(3)(C), 2255 (2000). Stevenson’s claim does not satisfy

either of these conditions. Therefore, we decline to authorize

Stevenson 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

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