United States v. Rutherford , 186 F. App'x 336 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6693
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY LEE RUTHERFORD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:00-cr-00009-11; 1:03-cv-00066)
Submitted: June 15, 2006 Decided: June 21, 2006
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gregory Lee Rutherford, Appellant Pro Se. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gregory Lee Rutherford seeks to appeal the district
court's order dismissing his Rule 60(b) motion challenging the
denial of his 28 U.S.C. § 2255 (2000) motion. The court found the
motion was successive. An appeal may not be taken from the final
order in a § 2255 proceeding unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000). 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 the district
court’s assessment of his constitutional claims is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. 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 conclude Rutherford has not
made the requisite showing.
Additionally, we construe Rutherford’s notice of appeal
and informal brief on appeal as an application to file a second or
successive § 2255 motion. See United States v. Winestock, 340 F.3d
200, 208 (4th Cir. 2003). To obtain authorization to file a
successive § 2255 motion, a prisoner must assert claims based on
either: (1) a new rule of constitutional law, previously
- 2 -
unavailable, made retroactive by the Supreme Court to cases on
collateral review; or (2) newly discovered evidence sufficient to
establish that no reasonable fact finder would have found the
movant guilty. 28 U.S.C. §§ 2244(b)(3)(C), 2255 (2000).
Rutherford’s claim does not satisfy either of these conditions.
For these reasons, we deny a certificate of
appealability, decline to authorize Rutherford to file a successive
§ 2255 motion, and dismiss the appeal. 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 -