US v. Douglas Brewbaker, No. 12-7400 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7400 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DOUGLAS HAYTH BREWBAKER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (7:00-cr-00077-BR-1; 7:12-cv-00044-BR) Submitted: February 21, 2013 Before AGEE and Circuit Judge. DAVIS, Circuit Decided: February 25, 2013 Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion. Douglas Hayth Brewbaker, Appellant Pro Se. Banumathi Rangarajan, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Douglas Hayth Brewbaker seeks to appeal the district court s order dismissing his 28 U.S.C.A. § 2255 (West Supp. 2012) motion as successive and without authorization from this court. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1)(B) (2006). issue absent a of 28 U.S.C. A certificate of appealability will not substantial constitutional right. appealability. 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 Brewbaker has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Brewbaker s notice of appeal and informal brief as an application 2 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: discoverable establish by by (1) newly discovered evidence, not previously due clear diligence, 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) (West Supp. 2012). either of these criteria. 28 U.S.C.A. Brewbaker s 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 this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3