United States v. Spalding , 177 F. App'x 313 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7594
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERTO SPALDING,
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-90-105)
Submitted: April 20, 2006 Decided: April 25, 2006
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Roberto Spalding, Appellant Pro Se. Laura Marie Everhart,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roberto Spalding seeks to appeal the district court’s
order denying relief on his Fed. R. Civ. P. 60(b) motion, which the
district court properly construed as a successive 28 U.S.C. § 2255(2000) motion. 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 that Spalding has
not made the requisite showing.
Additionally, we construe Spalding’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
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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).
Spalding’s claim does not satisfy either of these conditions.
For these reasons, we deny a certificate of
appealability, decline to authorize Spalding 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
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