United States v. Watson

142 F. App'x 180

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7455

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KEITH ALAN WATSON, a/k/a “Tank”,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (CR-99-23; CA-03-381)

Submitted: August 25, 2005 Decided: August 30, 2005

Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Keith Alan Watson, Appellant Pro Se. Fernando Groene, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, Robert Joseph Seidel, Jr., Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Keith Alan Watson appeals the order of the district court

denying relief on his motion filed under 28 U.S.C. § 2255 (2000),

and its order dismissing for lack of jurisdiction Watson’s motion

filed under Fed. R. Civ. P. 60(b) but characterized by the district

court as a successive 28 U.S.C. § 2255 (2000) motion.

The orders are not appealable unless a circuit justice or

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

§ 2253(c)(1) (2000). Watson may satisfy this standard by

demonstrating that reasonable jurists would find both that his

constitutional claims are debatable and that any dispositive

procedural rulings by the district court are 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

determine that Watson has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.

In addition, we construe Watson’s notice of appeal and

appellate brief as a request for authorization from this court to

file a second § 2255 motion. See United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003). This court may authorize a second

or successive § 2255 motion only if the applicant can show that his

claims are based on (1) a new rule of constitutional law, made

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that was previously unavailable; or (2) newly discovered evidence

that, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing evidence

that no reasonable factfinder would have found him guilty of the

offense. See 28 U.S.C. §§ 2244(b)(2), 2255 (2000). The applicant

bears the burden of making a prima facie showing of these

requirements in his application. See In re Fowlkes, 326 F.3d 542,

543 (4th Cir. 2003). In the absence of pre-filing authorization,

the district court is without jurisdiction to entertain the motion.

Evans v. Smith, 220 F.3d 306, 325 (4th Cir. 2000). We conclude

that Watson’s claims do not satisfy either of the applicable

conditions, and we, therefore, deny his implied request for

authorization to file a second or 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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