US v. Calvin Lee Everette, No. 12-7825 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7825 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CALVIN LEE EVERETTE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:01-cr-00068-BO-1; 5:04-cv-00358-BO) Submitted: February 26, 2013 Decided: February 28, 2013 Before MOTZ, WYNN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Calvin Lee Everette, Appellant Pro Se. Sebastian Kielmanovich, Jennifer P. May-Parker, Assistant United States Attorneys, Joshua Bryan Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Calvin Lee Everette 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. 2012) 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. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief demonstrate on both procedural that the When the district court grounds, dispositive the prisoner procedural ruling must 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 Everette has not made the requisite showing. Accordingly, we deny Everette s motion for a certificate of appealability and dismiss the appeal. 2 Additionally, we construe Everette 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 discovered evidence, not previously discoverable establish by by 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. Everette 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