US v. Kenneth Kubinski, No. 13-6903 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6903 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH B. KUBINSKI, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Fayetteville. Malcolm J. Howard, Senior District Judge. (3:93-cr-00028-H-1) Submitted: November 27, 2013 Decided: December 13, 2013 Before KING, AGEE, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. D. Craig Hughes, LAW OFFICES OF D. CRAIG HUGHES, Houston, Texas, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Shailika K. Shah, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth B. appeals Kubinski the district court s orders denying him relief under Fed. R. Crim. P. 35 (1990) ( old Rule 35 ) and denying his postjudgment motion under Fed. R. Civ. P. 59(e). Our review of the record convinces us that Kubinski was properly sentenced under the federal Sentencing Guidelines, and that he is Therefore, the under Rule old not entitled district 35 or court in to relief did not declining under err to in old Rule denying alter or 35. relief amend the judgment. In any event, the claims Kubinski asserts are more properly raised under 28 U.S.C.A. § 2255 (West Supp. 2013), but because he has already challenged the convictions in question under § 2255, without he cannot authorization file from a second this or Court. successive In motion accordance with Circuit authority, we have construed Kubinski s notice of appeal and informal brief as an successive § 2255 motion. application to file a second or See United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization We reject the Government s claim that Kubinski s notice of appeal is untimely. See MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 279 (4th Cir. 2008) ( [D]esignation of a postjudgment motion in the notice of appeal is adequate to support a review of the final judgment when the intent to do so is clear. (internal quotation marks omitted)). 2 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). of these criteria. Kubinski s claims do not satisfy either 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. AFFIRMED 3