US v. Pete Hirst, No. 09-8088 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8088 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PETE DIAMOND HIRST, a/k/a Pete Harris, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:02-cr-00134-RAJ-TEM-1; 4:09-cv-00145-RAJ) Submitted: February 25, 2010 Decided: March 9, 2010 Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Pete Diamond Hirst, Appellant Pro Se. Fernando Groene, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pete Diamond Hirst seeks to appeal the district court s order treating his Pro Se Nunc Pro Tunc motion as a successive 28 U.S.C.A. § 2255 dismissing it on that basis. a circuit justice appealability. 28 or (West Supp. 2009) motion, and The order is not appealable unless judge U.S.C. issues a § 2253(c)(1) Angelone, 369 F.3d 363, 369 (4th Cir. 2004). certificate (2006); Reid of v. 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 Hirst has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Additionally, we construe Hirst s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. 2 United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 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. Hirst 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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