United States v. Maybeck , 45 F. App'x 309 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-6523
THOMAS JOHN MAYBECK,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-89-163-C, CR-89-164-C, CA-02-31-3-02-MU)
Submitted: August 27, 2002
Decided: September 13, 2002
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Thomas John Maybeck, Appellant Pro Se. Robert James Conrad, Jr.,
United States Attorney, Brian Lee Whisler, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MAYBECK
OPINION
PER CURIAM:
Thomas John Maybeck seeks to appeal the district court’s order
dismissing his 28 U.S.C. § 2255 (2000) motion to set aside, vacate,
or correct his sentence as second or successive within the meaning of
28 U.S.C. § 2244(b) (2000). Maybeck filed a first § 2255 motion in
February 1991 challenging his February 1990 convictions for bank
robbery and unlawful possession of a firearm. The district court dis-
missed that motion; however, we reversed the district court’s order
and remanded for re-sentencing. See United States v. Maybeck, 23
F.3d 888 (4th Cir. 1994). Maybeck’s present § 2255 motion chal-
lenges issues arising from his re-sentencing.
To be entitled to a certificate of appealability, Maybeck must make
"a substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2) (2000). When a district court dismisses solely on
procedural grounds, the movant "must demonstrate both (1) ‘that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right,’ and (2) ‘that jurists
of reason would find it debatable whether the district court was cor-
rect in its procedural ruling.’" Rose v. Lee, 252 F.3d 676, 684 (4th Cir.
2001) (quoting Slack v. McDaniel, 529 U.S. 473 (2000)).
In In re Taylor, 171 F.3d 185, 187-88 (4th Cir. 1999), this Court
held that when a prisoner files a § 2255 motion that expressly seeks
to raise issues that originate at the time of his re-sentencing, the
motion is not "second or successive" within the meaning of § 2244(b).
Accordingly, because Maybeck’s § 2255 motion that is the subject of
this appeal specifically sought to raise issues arising from his re-
sentencing, we conclude the district court erred in dismissing it as
second or successive. Nevertheless, Maybeck is not entitled to relief.
Upon examination of Maybeck’s motion, we cannot conclude that
reasonable jurists would find it debatable whether Maybeck has stated
a valid claim of the denial of a constitutional right because he has
failed to sufficiently allege such a claim. Accordingly, we deny a cer-
tificate of appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately pre-
UNITED STATES v. MAYBECK 3
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED