US v. Marvin Witherspoon, No. 09-6970 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6970 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARVIN HAROLD WITHERSPOON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cv-00021-RLV; 5:04-cr-00005-RLVDCK-1) Submitted: October 29, 2009 Before MOTZ and Circuit Judge. SHEDD, Circuit Decided: Judges, and November 24, 2009 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marvin Harold Witherspoon seeks to appeal the district court s orders treating his Fed. R. Civ. P. 60(b) motions as successive 28 U.S.C.A. § 2255 (West Supp. 2009) motions, and dismissing them on that basis and denying his motion to alter or amend the judgment. The orders are 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). issue absent constitutional prisoner a A certificate of appealability will not substantial right. satisfies reasonable jurists constitutional 28 this would claims by showing U.S.C. the the denial § 2253(c)(2) standard find of by that (2006). demonstrating any district of assessment court is a A that of debatable the 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 Witherspoon has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Witherspoon 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). obtain authorization prisoner must discovered to assert evidence, file a claims not successive based previously on 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). Witherspoon s claims do not 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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