United States v. Uzuegbunam

178 F. App'x 271

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 8, 2006
• Docket: 06-6155
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6155

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EMMANUEL UZUEGBUNAM,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (3:96-cr-00043-REP; 3:06-cv-00015-REP)

Submitted: April 27, 2006 Decided: May 8, 2006

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Emmanuel Uzuegbunam, Appellant Pro Se. Andrew Gerald McBride, WILEY, REIN & FIELDING, L.L.P., Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Emmanuel Uzuegbunam seeks to appeal the district court’s

order construing as a motion filed pursuant to 28 U.S.C. § 2255

(2000), his motion to recall the district court’s order previously

dismissing his petition for a writ of error coram nobis, and then

dismissing it for lack of jurisdiction as an unauthorized

successive motion. An appeal may not be taken from the final order

in a habeas corpus proceeding unless a circuit justice or judge

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)

(2000). When, as here, a district court dismisses a § 2255 motion

solely on procedural grounds, a certificate of appealability will

not issue unless the petitioner can demonstrate both “(1) ‘that

jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right’ and

(2) ‘that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.’” Rose v.

Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)). We have independently reviewed the

record and conclude that Uzuegbunam has not made the requisite

showing. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Finally, in accordance with United States v. Winestock,

340 F.3d 200, 208 (4th Cir. 2003), we construe Uzuegbunam’s notice

of appeal and informal brief as a motion for authorization under 28

U.S.C. § 2244 (2000), to file a successive habeas corpus motion.

- 2 - To obtain permission to bring a second or successive § 2255 motion,

a movant must show that his claim: (1) “relies on a new rule of

constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable” or (2)

relies on newly discovered facts that tend to establish the

movant’s innocence. 28 U.S.C. § 2244. We conclude that Uzuegbunam

has not satisfied either standard.

Accordingly, we deny Uzuegbunam’s implicit application

for leave to file a successive § 2255 motion, deny his motion for

a certificate of appealability, 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

- 3 -