UNITED STATES v. DUDLEY

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United States Court of Appeals,Fourth Circuit.

UNITED STATES of America, Plaintiff–Appellee, v. Sean Lamont DUDLEY, a/k/a John D. Brown, Defendant–Appellant.

No. 13–7906.

Decided: March 28, 2014

Before GREGORY, KEENAN, and WYNN, Circuit Judges. Sean Lamont Dudley, Appellant Pro Se. Robert J. Higdon, Jr., Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Sean Lamont Dudley seeks to appeal the district court's order treating his Fed.R.Civ.P. 60(b) motion as a successive and unauthorized 28 U.S.C. § 2255 (2012) motion and dismissing it on that basis, as well as its order denying his motion for reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484–85.

We have independently reviewed the record and conclude that Dudley has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.

Additionally, we construe Dudley's notice of appeal and informal brief as an application to file a second or successive § 2255 motion. See United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain 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, which 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. § 2255(h). Dudley'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 this court and argument would not aid the decisional process.

DISMISSED

PER CURIAM:

Dismissed by unpublished PER CURIAM opinion.Unpublished opinions are not binding precedent in this circuit.

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