US v. Hugh Epps, No. 13-8051 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-8051 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HUGH EPPS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (3:07-cr-00420-JRS-1) Submitted: March 27, 2014 Before MOTZ, Circuit Circuit Judges. Judge, Decided: and HAMILTON and April 1, 2014 DAVIS, Senior Dismissed by unpublished per curiam opinion. Hugh Epps, Appellant Pro Se. Gurney Wingate Grant, II, Michael Calvin Moore, Assistant United States Attorneys, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hugh Epps seeks to appeal the district court s order treating his motion for a writ of error coram nobis as a successive 28 U.S.C. § 2255 (2012) motion, and dismissing it on that basis. justice or The judge order issues is a not appealable certificate U.S.C. § 2253(c)(1)(B) (2012). of unless a circuit appealability. 28 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) (2012). 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 Epps has not made the requisite showing. Accordingly, we deny Epps motion for a transcript at government expense, deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. 2 Additionally, we construe Epps 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. § 2255(h) (2012). of these criteria. Epps 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. DISMISSED 3
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