US v. Barry Davis, No. 12-7387 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7387 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BARRY ELIJAH DAVIS, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:06-cr-00005-MJG-1) Submitted: November 13, 2012 Decided: November 16, 2012 Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Barry Elijah Davis, Appellant Pro Se. Jonathan Biran, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Barry court s order successive 28 Elijah Davis treating his U.S.C.A. seeks Fed. § 2255 (West dismissing it on that basis. court s order orders are issues denying not a appealable certificate § 2253(c)(1)(B) (2006). issue his absent a appeal Civ. P. Supp. the 60 district motion 2012) as motion, a and Davis also seeks to appeal the motion unless of for a reconsideration. circuit justice appealability. or 28 The judge U.S.C. A certificate of appealability will not substantial constitutional right. R. to showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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 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 Davis has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in 2 forma pauperis, and dismiss the appeal. We also deny Davis s motions for a transcript at government expense and to supplement the record. Additionally, we construe Davis s notice of appeal and informal brief as an application to file a 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 discoverable establish by by discovered due diligence, clear and evidence, that convincing not would be evidence previously 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. 28 U.S.C.A. § 2255(h) not (West Supp. 2012). either of these criteria. Davis s claims do 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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