United States v. Mohammed , 201 F. App'x 150 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7655
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAID MOALIN MOHAMMED,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-98-160; CA-02-795)
Submitted: August 31, 2006 Decided: September 28, 2006
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Said Moalin Mohammed, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Said Moalin Mohammed seeks to appeal the district court’s
orders denying relief on his motion for reduction of sentence, his
motion for reconsideration, and his motion to reinstate appeal. We
conclude these orders are not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). We deny a certificate of appealability and
dismiss.
In 1999, a jury convicted Mohammed of bank robbery and
possession and use of a firearm during a crime of violence;
Mohammed was sentenced to 117 months’ imprisonment.
In 2002, Mohammed filed an initial 28 U.S.C. § 2255(2000) motion alleging ineffective assistance of counsel for
failure to file a requested direct appeal. The district court
dismissed Mohammed’s motion as untimely.
Mohammed then filed a motion for reduction of sentence
under United States v. Booker, 543 U.S. 220 (2000). That motion
was properly denied, as was Mohammed’s subsequent motion for
reconsideration. Mohammed next filed a motion to reinstate his
appeal, which asserted the same ineffective assistance of counsel
claim and sought to reserve the right to raise two other issues
upon the reinstatement of his appeal: insufficient evidence and
Booker error; that motion was properly denied. All of these
motions appear to be attempts to circumvent the requirement that
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Mohammed obtain prefiling authorization prior to filing a second or
successive habeas motion. See 28 U.S.C. § 2244 (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 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 Mohammed has
not made the requisite showing. Accordingly, we deny Mohammed’s
motion for a certificate of appealability 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
*
To the extent Mohammed’s motion is construed as a motion for
authorization to file a successive § 2255 motion, that claim fails,
as Mohammed has failed to allege: (1) newly discovered evidence or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable. 28 U.S.C. § 2255; see United States v. Morris, 429
F.3d 65, 72 (4th Cir. 2005) (holding Booker is not retroactively
applicable to cases on collateral review).
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