US v. Willie Barnes, No. 12-7340 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7340 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIE EDWARD BARNES, a/k/a Big Will, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:08-cr-00064-JPB-DJJ-1; 3:10-cv-00107JPB-DJJ) Submitted: November 13, 2012 Decided: November 15, 2012 Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Willie Edward Barnes, Appellant Pro Se. Paul Thomas Camilletti, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Willie Edward Barnes seeks to appeal the district court s order denying his motion under Fed. R. Civ. P. 60(b)(6). * The order is not appealable unless a circuit justice or judge issues a certificate § 2253(c)(1)(B) (2006). issue absent a constitutional of appealability. 28 U.S.C. A certificate of appealability will not substantial right. 28 showing U.S.C. of the denial § 2253(c)(2). of When a 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 of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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 484-85. We have independently reviewed the record and conclude that Barnes has not made the requisite showing. * Accordingly, we Because Barnes Rule 60(b) motion directly attacked his conviction, it was, in essence, an unauthorized and successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion over which the district court lacked jurisdiction. United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). 2 deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Additionally, we construe Barnes notice of appeal and informal brief as an application to file a second or successive § 2255 motion. Winestock, 340 F.3d at 208. In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims evidence, not would based sufficient be evidence that, previously but to for on either: discoverable establish (1) newly by by due clear constitutional error, discovered diligence, that and 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). either of these criteria. Barnes claims do not satisfy 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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