United States v. Spotts , 145 F. App'x 420 ( 2005 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-6759
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    KELVIN ANDRE SPOTTS,
    Defendant - Appellant.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Huntington.  Robert C. Chambers,
    District Judge. (CR-98-47; CA-00-647)
    Submitted:   October 18, 2005             Decided:   October 21, 2005
    Before WIDENER, MICHAEL, and DUNCAN, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Kelvin Andre Spotts, Appellant Pro Se. Ray McVeigh Shepard,
    Special Assistant United States Attorney, Charleston, West
    Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Kelvin Andre Spotts, a federal prisoner, seeks to appeal
    the district court order denying his motion entitled “Motion for
    Reconsideration      and/or      Redetermination      of    Findings      and
    Recommendations made on June 9th, 2003, by Magistrate Judge Maurice
    Taylor.”1    An appeal may not be taken from the final order in a 
    28 U.S.C. § 2255
     (2000) 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   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 Spotts has not made the requisite showing.
    Accordingly, we deny a certificate of appealability and dismiss the
    appeal.2
    1
    Spotts is referring to the Findings and Recommendation issued
    by a Magistrate Judge on June 9, 2003, in which the magistrate
    recommended denying Spotts’ § 2255 motion. That recommendation was
    adopted by the district court.
    2
    We note that the district court recognized that Spotts’
    (continued...)
    - 2 -
    Additionally, we construe Spotts’ notice of appeal and
    informal brief on appeal as an application to file a successive
    § 2255 motion.     See Winestock, 340 F.3d at 208.         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
    sufficient to establish that no reasonable fact finder would have
    found the movant guilty. 
    28 U.S.C. § 2244
    (b)(3)(C); § 2255 (2000).
    Spotts’   claims    do    not   satisfy    either    of    these    conditions.
    Therefore, we decline to grant Spotts authorization to file a
    successive § 2255 motion.        We also deny Spotts’ motion to remand.
    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
    2
    (...continued)
    motion could be construed as a successive habeas motion. We find
    such a construction appropriate because the motion directly
    attacked Spotts’ sentence. See United States v. Winestock, 
    340 F.3d 200
    , 206-07 (4th Cir.), cert. denied, 
    540 U.S. 995
     (2003).
    Nonetheless, Spotts fails to establish the criteria for issuance of
    a certificate of appealability. See Reid v. Angelone, 
    369 F.3d 363
    , 368-69 (4th Cir. 2004).
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