US v. Gregory Hinton, No. 09-6887 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6887 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GREGORY HINTON, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:00-cr-00180-GBL-1) Submitted: July 23, 2009 Decided: July 30, 2009 Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Gregory Hinton, Appellant Pro Se. OF THE UNITED STATES ATTORNEY, Appellee. Dabney P. Langhorne, OFFICE Alexandria, Virginia, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gregory Hinton 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. 2009) motion and dismissing it on that basis and denying relief on his related motions. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. Reid v. Angelone, certificate of 369 F.3d 28 U.S.C. § 2253(c)(1) (2006); 363, appealability 369 will (4th not Cir. A absent issue 2004). a substantial showing of the denial of a constitutional right. 28 U.S.C. standard § 2253(c)(2) by (2006). demonstrating that A prisoner reasonable satisfies jurists this 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). conclude that We have independently reviewed the record and Hinton has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, and informal brief as we an construe Hinton s application to successive motion under 28 U.S.C.A. § 2255. 2 notice file a of appeal second or United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). obtain authorization prisoner must discovered to assert evidence, file a claims not successive based on previously In order to § 2255 either: discoverable motion, a (1) newly 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. 28 U.S.C.A. § 2255(h) (West Supp. 2009). Hinton s not claims do 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 before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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