United States v. Sutton

124 F. App'x 792

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7970

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

QUINTON LEON SUTTON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Frank W. Bullock, Jr., District Judge. (CR-98-355; CA-04-933-1)

Submitted: March 24, 2005 Decided: March 30, 2005

Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Quinton Leon Sutton, Appellant Pro Se. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Quinton Leon Sutton, a federal prisoner, seeks to appeal

the district court’s order adopting the magistrate judge’s

recommendation and denying relief on Sutton’s Fed. R. Civ. P. 15(c)

and 60(b) motion that the court construed as a 28 U.S.C. § 2255

(2000) motion. An appeal may not be taken from the district

court’s order 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 for claims addressed by

a district court 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 both that the district court’s assessment of his

constitutional claims is 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 Sutton has not made the requisite showing.

Accordingly, we deny Sutton’s motion for a certificate of

appealability and dismiss the appeal.

Additionally, we construe Sutton’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

- 2 - 200, 208 (4th Cir.), cert. denied, 540 U.S. 995 (2003). In order

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 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). Sutton’s claim does not satisfy

either of these conditions. Therefore, we decline to authorize

Sutton 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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