United States v. Thomas

139 F. App'x 594

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6957

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LEROY ANTHONY THOMAS,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, Chief District Judge. (CR-98-111-HNM; CA-03-416-L)

Submitted: June 22, 2005 Decided: July 28, 2005

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Leroy Anthony Thomas, Appellant Pro Se. Andrew Clayton White, SILVERMAN, THOMPSON & WHITE, L.L.C., Baltimore, Maryland, James Clarke Howard, CHESAPEAKE MERIDIAN, Annapolis, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Leroy Anthony Thomas seeks to appeal the district court’s

order denying relief on his Fed. R. Civ. P. 60(b)(3) 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 Thomas has not made the

requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal.

Additionally, we construe Thomas’ 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, 540 U.S. 995 (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). Thomas’ claim does not satisfy

either of these conditions. Therefore, we decline to authorize

Thomas 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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