US v. Jason McCright, No. 14-6433 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6433 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JASON L. MCCRIGHT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, Chief District Judge. (4:09-cr-00022-RBS-TEM-1) Submitted: July 24, 2014 Decided: August 18, 2014 Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Jason L. McCright, Appellant Pro Se. Timothy Richard Murphy, Special Assistant United States Attorney, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jason L. McCright seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2255 (2012) motion, and dismissing it on that basis. Because district we conclude, court after properly reviewing construed the record, McCright s that motion as the a successive habeas petition, the order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2012). 28 U.S.C. § 2253(c)(2) When the district court denies relief on procedural grounds, as the district court did in this case, 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. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). We have independently reviewed the record and conclude that McCright has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe McCright 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 2 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. McCright 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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