US v. Lorenzo Butts, Jr., No. 09-7802 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7802 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LORENZO BUTTS, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:00-cr-00067-JBF-1) Submitted: February 18, 2010 Decided: February 24, 2010 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Lorenzo Butts, Jr., Appellant Pro Se. Kevin Michael Comstock, Joseph Evan DePadilla, Assistant United States Attorneys, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lorenzo Butts, 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. 2009) motion, and dismissing it on that basis, and denying his motion for recusal. 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). certificate of appealability will not issue absent A 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 would this 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 We that have Butts independently has not made reviewed the the record requisite and showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny the Government s motion to consolidate with Appeal No. 09-7803. Additionally, we construe Butts s notice of appeal and informal brief as an application to file a second or successive 2 motion under 28 U.S.C.A. § 2255. 340 F.3d 200, 208 (4th Cir. United States v. Winestock, 2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims evidence, not would based sufficient be evidence previously that, but to for on either: discoverable establish (1) newly by by due diligence, clear constitutional discovered that and error, convincing 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). claims do not satisfy either of these criteria. Butts s 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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