United States v. Bellamy , 382 F. App'x 343 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6232
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLAUDE WENDELL BELLAMY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (7:03-cv-00024-F; 7:99-cr-00049-F-1)
Submitted: April 2, 2010 Decided: June 15, 2010
Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER,
Circuit Judges.
Dismissed by unpublished per curiam opinion.
Claude Wendell Bellamy, Appellant Pro Se. John Samuel Bowler,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Claude Bellamy seeks to appeal the district court’s
order denying his motion filed pursuant to Fed. R. Civ. P.
60(b). The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369
(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) (2006). 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 Bellamy has not made the requisite
showing. Accordingly, we deny a certificate of appealability
and dismiss the appeal.
Additionally, we construe Bellamy’s notice of appeal
and informal brief as an application to file a second or
successive motion under 28 U.S.C.A. § 2255 (West Supp. 2010).
United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003).
In order to obtain authorization to file a successive § 2255
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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, not previously discoverable by
due diligence, that would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the petitioner guilty of
the offense. 28 U.S.C. § 2244(b)(2) (2006). Bellamy’s claims
do not satisfy either of these criteria. Therefore, we deny
authorization 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
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