US v. Uzuegbunam, No. 07-7134 (4th Cir. 2007)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7134 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EMMANUEL UZUEGBUNAM, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (3:96-cr-00043-REP; 3:07-cv-539) Submitted: October 18, 2007 Decided: October 26, 2007 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Emmanuel Uzuegbunam, Appellant Pro Se. Andrew Gerald McBride, WILEY REIN, LLP, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Emmanuel Uzuegbunam seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on that basis. The order 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 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 Uzuegbunam has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Uzuegbunam s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. § 2255. F.3d 200, 208 (4th Cir. 2003). United States v. Winestock, 340 In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims - 2 - 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 establish by by due clear diligence, and that convincing would be evidence sufficient that, but to for constitutional error, no reasonable factfinder would have found the movant guilty of the offense. (2000). criteria. Uzuegbunam s claims 28 U.S.C. §§ 2244(b)(2), 2255 do not satisfy either of these 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 - 3 -
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