United States v. Wall

326 F. App'x 161

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 29, 2009
• Docket: 09-6146
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6146

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RODNEY EDWARD WALL, a/k/a Sld Dft 3:99-24-9, a/k/a Big Rodney,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:99-cr-00024-FDW-9)

Submitted: May 21, 2009 Decided: May 29, 2009

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Rodney Edward Wall, Appellant Pro Se. Douglas Scott Broyles, Assistant United States Attorney, Charlotte, North Carolina, Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Rodney Edward Wall seeks to appeal the district

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

reconsideration of his 28 U.S.C.A. § 2255 (West Supp. 2008)

motion. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369

(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) (2006). A prisoner satisfies

this standard by demonstrating that reasonable jurists would

find that any assessment of the constitutional claims by the

district court is debatable or wrong and that any dispositive

procedural ruling by the district court is likewise debatable.

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.

McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,

683-84 (4th Cir. 2001). We have independently reviewed the

record and conclude that Wall has not made the requisite

showing. Accordingly, we deny a certificate of appealability

and dismiss the appeal.

Additionally, we construe Wall’s notice of appeal and

informal brief as an application to file a second or successive

motion under 28 U.S.C. § 2255. United States v. Winestock,

340 F.3d 200, 208 (4th Cir. 2003). In order to obtain

2 authorization to file a successive § 2255 motion, a prisoner

must assert claims based on either: (1) newly discovered

evidence, not previously discoverable by due diligence, that

would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no reasonable

factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, previously unavailable,

made retroactive by the Supreme Court to cases on collateral

review. 28 U.S.C.A. § 2255(h) (West Supp. 2008). Wall’s claims

do not satisfy either of these criteria. Therefore, we deny

authorization 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