US v. Norwood Barber, Jr., No. 12-7873 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7873 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NORWOOD WALLACE BARBER, JR., a/k/a Pee Wee Barber, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:05-cr-00015-SGW-1; 5:12-cv-80501-SGW-RSB) Submitted: April 25, 2013 Before AGEE and Circuit Judge. WYNN, Circuit Decided: April 29, 2013 Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion. Norwood Wallace Barber, Jr., Appellant Pro Se. Grayson A. Hoffman, Assistant United States Attorney, Harrisonburg, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Norwood Wallace Barber, Jr., seeks to appeal the district court s order dismissing his motion filed pursuant to Fed. R. Civ. P. 60(b) or, alternatively, 28 U.S.C.A. § 2255 (West Supp. 2012) as an unauthorized successive § 2255 motion. * The order is not appealable unless a circuit justice or judge issues a certificate § 2253(c)(1)(B) (2006). issue absent a of appealability. U.S.C. A certificate of appealability will not substantial constitutional right. 28 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. * To the extent Barber alleged a defect in the collateral review process, and his motion constituted a true Rule 60(b) motion, Gonzalez v. Crosby, 545 U.S. 524, 535-36 & n.7 (2005); United States v. Winestock, 340 F.3d 200, 206-08 (4th Cir. 2003), we conclude the district court properly denied relief. 2 We have independently reviewed the record and conclude that Barber has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, and informal brief we as construe an successive § 2255 motion. Barber s application to notice file a Winestock, 340 F.3d at 208. of appeal second or In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence that . . . would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C.A. § 2255(h) (West Supp. 2012). satisfy either of these Barber s claims do not criteria. 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
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