US v. Robert Davis, No. 10-6286 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6286 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROBERT HENRY DAVIS, a/k/a Pops, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:00-cr-00424-PJM-2; 8:09-cv-03250-PJM) Submitted: May 20, 2010 Decided: May 28, 2010 Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Robert Henry Davis, Appellant Pro Se. John Walter Sippel, Jr., Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Henry Davis seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as a successive and unauthorized 28 U.S.C.A. § 2255 (West Supp. 2009) motion, and dismissing it on that basis, and declining to issue a certificate of appealability. not appealable certificate Reid v. unless of circuit appealability. Angelone, certificate a The district court s order is of 369 justice 28 U.S.C. F.3d 363, appealability 369 will or judge issues § 2253(c)(1) (4th not Cir. a (2006); 2004). absent issue A a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district debatable merits, that court s or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of Slack this the v. McDaniel, standard find that U.S. the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at the 484-85. conclude that We have Davis independently has not made 2 reviewed the record requisite and showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Davis s notice of appeal and informal brief as an application to file a successive § 2255 motion. 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 based on either: (1) newly discovered evidence, not previously 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. 28 U.S.C.A. § 2255(h) (West Supp. 2009). Davis 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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