US v. Timnah Rudisill, No. 13-6405 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6405 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMNAH K. RUDISILL, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:01-cr-00048-MR-9; 1:05-cv-00212-MR) Submitted: June 20, 2013 Decided: June 26, 2013 Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Timnah K. Rudisill, Appellant Pro Se. Thomas Richard Ascik, Amy Elizabeth Ray, Assistant United States Attorneys, Jill Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Timnah K. Rudisill seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A. § 2255 dismissing it on that basis. a circuit justice appealability. or (West Supp. 2013) motion, and The order is not appealable unless judge issues a certificate 28 U.S.C. § 2253(c)(1)(B) (2006). of 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 on both procedural that the When the district court grounds, dispositive the prisoner procedural must 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 Rudisill has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Rudisill s notice of appeal and informal brief as an application 2 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: (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. 2013). not satisfy either of these criteria. Rudisill 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
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