United States v. Stevenson , 124 F. App'x 186 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IVAN JULIAN STEVENSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-93-25; CA-04-493-7-jct-mfu)
Submitted: February 25, 2005 Decided: March 22, 2005
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ivan Julian Stevenson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ivan Julian Stevenson seeks to appeal the district
court’s order denying relief on his Fed. R. Civ. P. 60(b) motion,
in which he sought reconsideration of the district court’s denial
of his motion under 28 U.S.C. § 2255 (2000). The order is not
appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000); see Reid v.
Angelone, 369 F.3d 363, 370 (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 his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. 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 Stevenson has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Stevenson’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.), cert. denied, 124 S. Ct. 496 (2003). In order
to obtain authorization to file a successive § 2255 motion, a
- 2 -
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 sufficient to establish that no reasonable fact
finder would have found the movant guilty. 28 U.S.C.
§§ 2244(b)(3)(C), 2255 (2000). Stevenson’s claim does not satisfy
either of these conditions. Therefore, we decline to authorize
Stevenson 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 -