US v. Robert Sills, No. 13-7105 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7105 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT EDWARD SILLS, a/k/a Bobby, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:03-cr-00148-AWA-5) Submitted: November 19, 2013 Before WYNN and Circuit Judge. FLOYD, Circuit Decided: November 22, 2013 Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion. Robert Edward Sills, Appellant Pro Se. Laura Marie Everhart, Benjamin L. Hatch, Assistant United States Attorneys, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Edward Sills seeks to appeal the district court s order treating his filing as a successive 28 U.S.C.A. § 2255 basis. judge (West Supp. 2013) and dismissing it on that The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1)(B) (2006). issue motion, absent a of 28 U.S.C. A certificate of appealability will not substantial constitutional right. appealability. showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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 Sills has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Sills notice of appeal and informal brief as an application to file a second or successive 2 § 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). Sills 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 * Insofar as Sills may be seeking relief under 18 U.S.C. § 3582(c) (2006), we agree with the district court that Sills is not eligible for a sentence reduction under the Sentencing Guidelines. 3