US v. Sherrell Brinkley, No. 13-8024 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-8024 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SHERRELL GARY BRINKLEY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:91-cr-00131-GCM-1) Submitted: April 28, 2014 Before WILKINSON and Senior Circuit Judge. NIEMEYER, Decided: Circuit Judges, May 13, 2014 and HAMILTON, Dismissed by unpublished per curiam opinion. Sherrell Gary Brinkley, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sherrell Gary Brinkley seeks to appeal the district court s order denying his Fed. R. Civ. P. 60(b) motion, which attacked his convictions and sentence and successive 28 U.S.C. § 2255 (2012) motion. constituted a See United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). The order is not appealable judge unless a circuit certificate of appealability. A certificate of justice or issues a 28 U.S.C. § 2253(c)(1)(B) (2012). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2012). 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 Brinkley has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Additionally, we construe Brinkley s notice of appeal and informal brief as an successive § 2255 motion. at 208. application to file a second or United States v. Winestock, 340 F.3d 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. § 2255(h) (2012). either of these criteria. Brinkley s claims do not satisfy 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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