US v. Rodney Stewart, No. 12-7879 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7879 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RODNEY EDWARD STEWART, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:06-cr-00046-JPJ-1; 1:10-cv-80213-JPJ) Submitted: February 20, 2013 Decided: March 28, 2013 Before GREGORY, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Rodney Edward Stewart, Appellant Pro Se. Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rodney court s order Edward denying Stewart his seeks Fed. R. to Civ. appeal P. the 60(b) district motion for relief from the district court s order denying his 28 U.S.C.A. § 2255 (West Supp. 2012) motion. unless a circuit justice judge appealability. See certificate appealability of 28 or The order is not appealable U.S.C. issues a certificate § 2253(c)(1)(B) will not of (2006). A absent a issue substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district merits, that court s debatable or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find U.S. that the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). 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 claim of the denial of a constitutional right. a debatable Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Stewart has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Additionally, we construe Stewart s notice of appeal, informal brief, and supplemental informal brief as application to file a second or successive § 2255 motion. an See 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 by due diligence, that would be sufficient to establish by clear and convincing evidence that, but 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. Stewart s claims See 28 U.S.C.A. § 2255(h) (West Supp. 2012). do not satisfy either of these 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