United States v. Morgan , 178 F. App'x 202 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-6294
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    FRED T. MORGAN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of Virginia, at Roanoke. James C. Turk, Senior District
    Judge. (3:97-cr-00083-jhm-AL; 7:05-cv-00224-jct-mf)
    Submitted: April 20, 2006                   Decided: April 26, 2006
    Before MICHAEL, KING, and DUNCAN, Circuit Judges.
    Affirmed in part, and dismissed in part by unpublished per curiam
    opinion.
    Fred T. Morgan, Appellant Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Fred Morgan, a federal prisoner, seeks to appeal the
    district court’s order dismissing his motion filed pursuant to Fed.
    R.   Civ.    P.   60(b),   which   the   district     court    construed     as   a
    successive 
    28 U.S.C. § 2255
     (2000) motion.             The order also denied
    Morgan’s motion for downward departure.
    The portion of the district court’s order dismissing
    Morgan’s Rule 60(b) motion is not appealable unless a circuit
    justice or judge issues a certificate of appealability.               
    28 U.S.C. § 2253
    (c)(1) (2000); Reid v. Angelone, 
    369 F.3d 363
    , 369 (4th Cir.
    2004).      A certificate of appealability will not issue for claims
    addressed by a district court 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 both that the district court’s assessment of his
    constitutional      claims    is   debatable     or    wrong    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 Morgan has not made the requisite
    showing.     Accordingly, we deny a certificate of appealability and
    dismiss this portion of the appeal.
    - 2 -
    Additionally, we construe Morgan’s notice of appeal and
    informal brief on appeal as an application to file a second or
    successive motion under 
    28 U.S.C. § 2255
    .              See United States v.
    Winestock, 
    340 F.3d 200
    , 208 (4th Cir. 2003).            In order 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 unavailable, made retroactive by the Supreme Court
    to cases on collateral review; or (2) newly discovered evidence
    that would be sufficient to establish by clear and convincing
    evidence    that    no   reasonable   factfinder     would    have   found   the
    petitioner guilty of the offense.             
    28 U.S.C. §§ 2244
    (b)(2), 2255
    (2000). Morgan’s claims do not satisfy either of these conditions.
    We therefore deny authorization to file a successive § 2255 motion.
    Finally, we have reviewed the record and the district
    court’s opinion and find no error in the denial of Morgan’s motion
    for downward departure. Accordingly, we affirm this portion of the
    district court’s order for the reasons stated by the district
    court.     See United States v. Morgan, Nos. 3:97-cr-00083-jhm-AL;
    7:05-cv-00224-jct-mf (W.D. Va. Jan. 31, 2006).               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.
    AFFIRMED IN PART;
    DISMISSED IN PART
    - 3 -