United States v. Walden

111 F. App'x 172

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6753

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEROME WALDEN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CR-95-63; CA-03-77)

Submitted: September 15, 2004 Decided: October 19, 2004

Before LUTTIG, MOTZ, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jerome Walden, Appellant Pro Se. David John Novak, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jerome Walden seeks to appeal the district court’s order

denying relief on his motion for reconsideration under Fed. R. Civ.

P. 60(b), following his unsuccessful motion under 28 U.S.C. § 2255

(2000). 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); 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 Walden has not made the requisite showing. Accordingly, we

deny a certificate of appealability and dismiss the appeal. In

accordance with United States v. Winestock, 340 F.2d 200, 206-08

(4th Cir.), cert. denied, 124 S. Ct. 496 (2003), we have also

construed Walden’s notice of appeal and informal brief as an

application for authorization to file a successive § 2255 motion

under 28 U.S.C. § 2244 (2000). We deny such authorization because

- 2 - Walden does not allege newly discovered evidence or a new rule of

constitutional law made retroactive to cases on collateral review

by the Supreme Court. Id. 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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