US v. James Downing, No. 09-7477 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7477 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES E. DOWNING, a/k/a Marcus Moultrie, a/k/a Rahmel Lyles, a/k/a Ramez Lyles, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (4:05-cr-00052-H-2) Submitted: March 30, 2010 Decided: April 2, 2010 Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. James E. Downing, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James E. Downing seeks to appeal the district court s order denying his Fed. R. Civ. P. 60(b) motion for reconsideration of the district court s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009) motion. not appealable unless a circuit certificate of appealability. Reid v. Angelone, A certificate of 369 justice or The order is judge issues a 28 U.S.C. § 2253(c)(1) (2006); F.3d 363, appealability will 369 not (4th Cir. issue 2004). absent a substantial showing of the denial of a constitutional right. 28 U.S.C. standard by § 2253(c)(2) (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). We have independently reviewed the record and conclude that Downing has not made the requisite showing. The district court lacked jurisdiction and therefore erred by deciding the Rule 60(b) motion on the merits. The claims raised in Downing s Rule 60(b) motion challenge the validity of his convictions. 2 Thus, the district court should have construed the motion as a successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (explaining how to differentiate a true Rule 60(b) motion from an unauthorized second or successive habeas corpus petition); United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (same). In the absence of pre-filing authorization from this court, the district court lacked jurisdiction to hear a successive § 2255 motion. See 28 U.S.C. § 2244(b)(3). Accordingly, we deny a certificate of appealability and dismiss the appeal. To the extent that Downing s notice of appeal and informal brief could be construed as a motion for authorization to file a successive § 2255 motion, we deny such authorization. See Winestock, 340 F.3d at 208. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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