US v. Sanchez McPherson, No. 15-7150 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7150 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SANCHEZ OZELL MCPHERSON, a/k/a Delano Jacob McPherson, a/k/a Chez, a/k/a Delano MacPherson, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-01348-PMD-1) Submitted: December 15, 2015 Before GREGORY Circuit Judge. and FLOYD, Decided: Circuit Judges, December 17, 2015 and DAVIS, Senior Affirmed by unpublished per curiam opinion. Sanchez Ozell McPherson, Appellant Pro Se. Assistant United States Attorney, Charleston, for Appellee. Sean South Kittrell, Carolina, Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sanchez Ozell McPherson appeals the district court’s order denying his Fed. R. Civ. P. 60(b) motion for reconsideration of the district court’s § 2255 (2012) motion. order denying relief on his 28 U.S.C. We have reviewed the record and conclude that McPherson’s motion was not a true Rule 60(b) motion, but in substance a successive § 2255 motion. See United States v. McRae, 793 F.3d 392, 399-400 (4th Cir. 2015); see also Gonzalez v. Crosby, 545 differentiate a U.S. 524, 531-32 true Rule 60(b) successive habeas motion). (2005) motion (explaining from an how to unauthorized McPherson therefore is not required to obtain a certificate of appealability to appeal the district court’s order. prefiling lacked motion. McRae, 793 F.3d at 400. authorization jurisdiction to from hear this court, McPherson’s In the absence of the district successive § court 2255 See 28 U.S.C. § 2244(b)(3) (2012). Additionally, we construe McPherson’s notice of appeal and informal brief as an application to file a second or successive § 2255 motion. (4th Cir. 2003). United States v. Winestock, 340 F.3d 200, 208 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 2 offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously McPherson’s claims unavailable. do not satisfy 28 U.S.C. either of § 2255(h). these criteria. Therefore, we deny authorization to file a successive § 2255 motion. Accordingly, we affirm the district court’s order. We deny McPherson’s motions for appointment of counsel, transcripts at Government dispense with contentions are expense, oral and relief argument adequately from because presented in judgment. the the facts We also and legal materials before this court and argument would not aid the decisional process. AFFIRMED 3
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