US v. Latchmie Toolasprashad, No. 12-8093 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-8093 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LATCHMIE NARAYAN TOOLASPRASHAD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Fayetteville. Terrence W. Boyle, District Judge. (3:85-00045-BO-1) Submitted: February 21, 2013 Before AGEE and Circuit Judge. DAVIS, Circuit Decided: Judges, and February 26, 2013 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Latchmie Narayan Toolasprashad, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Latchmie Narayan Toolasprashad seeks to appeal the district court s order dismissing his 28 U.S.C.A. § 2255 (West Supp. 2012) motion as successive and without authorization from this court. justice or The judge order issues is a not appealable certificate U.S.C. § 2253(c)(1)(B) (2006). of unless a circuit appealability. 28 A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). 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. We have independently reviewed the record and conclude that Toolasprashad has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Additionally, we construe Toolasprashad 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: discoverable establish by by (1) newly discovered evidence, not previously 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) satisfy (West either Supp. of 2012). these Toolasprashad s criteria. 28 U.S.C.A. claims Therefore, do we not deny authorization to file a successive § 2255 motion. We deny Toolasprashad s appointment of counsel. motions to seal and for We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3