US v. Emmett Graham, Jr., No. 09-6135 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6135 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EMMETT MADISON GRAHAM, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:97-cr-00098-F-1) Submitted: May 28, 2009 Before MOTZ and Circuit Judge. KING, Decided: Circuit Judges, and July 7, 2009 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Emmett Madison Graham, Jr., Appellant Pro Se. Michael Gordon James, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Emmett Madison Graham, Jr., seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp. 2008) motion, and dismissing it on that basis. a circuit justice appealability. 369 F.3d or The order is not appealable unless judge issues a certificate of 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) 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 Graham has not made the requisite showing. motion appeal. for We a certificate further deny of Accordingly, we deny Graham s appealability Graham s motions and for dismiss bail and the to schedule a bail hearing and deny as moot Graham s motion to expedite review of the motion for bail or the merits of the appeal. 2 Additionally, and informal brief we as an construe Graham s application to notice file successive motion under 28 U.S.C.A. § 2255. authorization prisoner must discovered to assert evidence, file a claims not successive based on previously appeal second or United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). obtain a of In order to § 2255 motion, either: a (1) newly 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 movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. not satisfy 28 U.S.C.A. § 2255(h). either of these criteria. Graham s claims do Therefore, we deny authorization to file a successive § 2255 motion. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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