US v. Frederick Seller, No. 11-6621 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6621 UNITED STATES OF AMERICA, Plaintiff Appellee, v. FREDERICK LYNN SELLERS, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. C. Weston Houck, Senior District Judge. (4:01-cr-00058-CWH-1; 4:04-cv-22627-CWH) Submitted: July 21, 2011 Before NIEMEYER and Senior Circuit Judge. GREGORY, Decided: Circuit Judges, July 26, 2011 and HAMILTON, Dismissed by unpublished per curiam opinion. Frederick Lynn Sellers, Appellant Pro Se. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Frederick Lynn Sellers 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 dismissing it on that basis. a circuit justice appealability. or (West Supp. 2010) motion, and The order is not appealable unless judge issues a certificate 28 U.S.C. § 2253(c)(1)(B) (2006). of A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court s assessment constitutional claims is debatable or wrong. of the Slack v. McDaniel, 529 U.S. 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 right. debatable Slack, 529 claim of the denial U.S. at 484-85. of We a constitutional have independently reviewed the record and conclude that Sellers has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, and informal brief as we an construe Sellers application 2 to notice file a of appeal second or 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 establish by by due diligence, clear and that convincing would be evidence sufficient that, but to 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. § 2255(h). Sellers criteria. claims do not satisfy 28 U.S.C.A. either of these 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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