United States v. Cargill , 193 F. App'x 262 ( 2006 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-6535
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    FREDERICK ANTHONY CARGILL,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham.     James A. Beaty, Jr.,
    District Judge. (2:94-cr-00300-JAB-8; 1:06-cv-00086-JAB)
    Submitted:   May 24, 2006                  Decided:   August 8, 2006
    Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Frederick Anthony Cargill, Appellant Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Frederick Anthony Cargill seeks to appeal the district
    court’s order accepting the recommendation of the magistrate judge,
    treating his Fed. R. Civ. P. 60(b) motion as a successive 
    28 U.S.C. § 2255
     (2000) motion, and dismissing it on that basis.              The order
    is not appealable unless a circuit justice or judge issues a
    certificate of appealability.           
    28 U.S.C. § 2253
    (c)(1) (2000);
    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)
    (2000).     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 Cargill has not made the
    requisite    showing.     Accordingly,     we   deny    a   certificate   of
    appealability and dismiss the appeal.
    Additionally, we construe Cargill’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 authorization to
    - 2 -
    file a successive § 2255 motion, a prisoner must assert claims
    based on either:       (1) a new rule of constitutional law, previously
    unavailable, made retroactive by the Supreme Court to cases on
    collateral review; or (2) 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.             
    28 U.S.C. §§ 2244
    (b)(2), 2255
    (2000).   Cargill’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
    - 3 -
    

Document Info

Docket Number: 06-6535

Citation Numbers: 193 F. App'x 262

Judges: Michael, Per Curiam, Shedd, Traxler

Filed Date: 8/8/2006

Precedential Status: Non-Precedential

Modified Date: 8/7/2023