US v. Dwayne Langford, No. 12-8047 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-8047 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DWAYNE ALTWAN LANGFORD, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:07-cr-00013-HMH-1; 8:10-cv-70237-HMH) Submitted: April 16, 2013 Decided: April 24, 2013 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Dwayne Altwan Langford, Appellant Pro Se. Elizabeth Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne Altwan Langford seeks to appeal the district court s order denying his Fed. R. Civ. P. 60(b) motion seeking relief from an order denying his 28 U.S.C.A. § 2255 (West Supp. 2012) motion. Langford s Because the Rule 60(b) motion directly attacked conviction, the district court was without jurisdiction to consider the motion, which was, in essence, a successive and unauthorized § 2255 motion. See United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). The district court s order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). 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 both on 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. 2 Slack, 529 U.S. at 484-85. We have independently reviewed the record and Langford has not made the requisite showing. conclude that Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Langford s notice of appeal and informal brief as an successive § 2255 motion. order to obtain application to file a second See Winestock, 340 F.3d at 208. authorization to file a successive or In § 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. Langford s claims 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
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