US v. Derrick Redd, No. 13-6983 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6983 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK VINCENT REDD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:97-cr-00006-JCC-1; 1:12-cv-01184-JCC) Submitted: August 29, 2013 Decided: September 4, 2013 Before DUNCAN, AGEE, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Derrick Vincent Redd, Appellant Pro Se. Robert Andrew Spencer, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derrick Vincent Redd seeks to appeal the district court s order denying his 28 U.S.C.A. § 2255 (West Supp. 2013) motion and his Fed. R. Civ. P. 60(b) motion as a successive § 2255 motion and dismissing the motions on that basis. The order is not appealable unless a circuit justice or judge issues a certificate (2006). of appealability. 28 U.S.C. § 2253(c)(1)(B) 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). relief on the demonstrating district merits, that court s debatable or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find U.S. that 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 claim of the denial of a constitutional right. a debatable Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Redd has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Additionally, we construe Redd 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: (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). Redd s claims do not satisfy Therefore, either of these criteria. 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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