US v. Fahed Tawalbeh, No. 12-8019 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-8019 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FAHED T. TAWALBEH, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:97-cr-00024-SGW-RSB-7; 7:00-cv-00858-SGW) Submitted: March 28, 2013 Decided: April 2, 2013 Before NIEMEYER, KING, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Fahed T. Tawalbeh, Appellant Pro Se. Anthony Paul Giorno, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fahed T. Tawalbeh seeks to appeal the district court s order dismissing his Fed. R. Civ. P. 60(b) motion filed in his 28 U.S.C.A. § 2255 (West Supp. 2012) proceedings. * not appealable unless a circuit certificate of appealability. A certificate of justice or The order is judge issues a 28 U.S.C. § 2253(c)(1)(B) (2006). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district debatable merits, that court s or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find that U.S. 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 a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at the 484 85. conclude that We have Tawalbeh independently has not * reviewed made the record requisite and showing. Because Tawalbeh s Rule 60(b) motion directly attacked his conviction, it was, in essence, an unauthorized and successive 28 U.S.C.A. § 2255 motion over which the district court lacked jurisdiction. United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). 2 Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Tawalbeh s notice of appeal and informal brief as an successive § 2255 motion. application to file a second Winestock, 340 F.3d at 208. or In order to obtain authorization to file a successive § 2255 motion, a prisoner must discovered assert evidence, claims not based on previously either: (1) discoverable newly 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. not satisfy 28 U.S.C.A. § 2255(h). either of these criteria. Tawalbeh s claims do 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