Wynn v. Jenkins

Fourth Circuit

Wynn v. Jenkins

82 F. App'x 859

CourtCourt of Appeals for the Fourth Circuit

DecidedDecember 23, 2003

Docket03-7177

StatusUnpublished

This text of 82 F. App'x 859 (Wynn v. Jenkins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wynn v. Jenkins, 82 F. App'x 859 (4th Cir. 2003).

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Opinion

OPINION

PER CURIAM.

Osborne Wynn, Jr., seeks to appeal the district court’s order denying his motion to vacate the district court’s judgment under Fed.R.Civ.P. 60(b). Wynn’s motion sought to reopen the judgment dismissing his first 28 U.S.C. § 2254 (2000) petition as untimely filed. As the district court correctly determined, Wynn’s self-styled Motion un *860 der Rule 60(b) is, in substance, a second habeas corpus petition attacking his conviction and sentence under 28 U.S.C. § 2254 (2000). See United States v. Winestock, 340 F.3d 200, 206 (4th Cir.2003). In the absence of pre-filing authorization, the district court was without jurisdiction to entertain the petition. Evans v. Smith, 220 F.3d 306, 325 (4th Cir.2000). Accordingly, we deny a certificate of appealability and dismiss the appeal of the district court’s order.

In accordance with Winestock, we also treat Wynn’s notice of appeal and appellate brief as a request for authorization from this court to file a second habeas corpus petition. See id. at 208. This court may authorize a second or successive § 2254 petition only if the applicant can show that his claims are based on (1) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, 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 fact finder would have found him guilty of the offense. See 28 U.S.C. §§ 2244(b)(2), 2255. 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). Wynn failed to make the requisite showing. Thus, we deny authorization under § 2244.

We deny Wynn’s motion for leave to proceed in forma pauperis. 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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OPINION

PER CURIAM.

Osborne Wynn, Jr., seeks to appeal the district court’s order denying his motion to vacate the district court’s judgment under Fed.R.Civ.P. 60(b). Wynn’s motion sought to reopen the judgment dismissing his first 28 U.S.C. § 2254 (2000) petition as untimely filed. As the district court correctly determined, Wynn’s self-styled Motion un *860 der Rule 60(b) is, in substance, a second habeas corpus petition attacking his conviction and sentence under 28 U.S.C. § 2254 (2000). See United States v. Winestock, 340 F.3d 200, 206 (4th Cir.2003). In the absence of pre-filing authorization, the district court was without jurisdiction to entertain the petition. Evans v. Smith, 220 F.3d 306, 325 (4th Cir.2000). Accordingly, we deny a certificate of appealability and dismiss the appeal of the district court’s order.

In accordance with Winestock, we also treat Wynn’s notice of appeal and appellate brief as a request for authorization from this court to file a second habeas corpus petition. See id. at 208. This court may authorize a second or successive § 2254 petition only if the applicant can show that his claims are based on (1) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, 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 fact finder would have found him guilty of the offense. See 28 U.S.C. §§ 2244(b)(2), 2255. 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). Wynn failed to make the requisite showing. Thus, we deny authorization under § 2244.

We deny Wynn’s motion for leave to proceed in forma pauperis. 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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82 F. App'x 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynn-v-jenkins-ca4-2003.

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