United States of America v.  Dexter Willis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-6954 
DEXTER WILLIS,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
James A. Beaty, Jr., District Judge.
(CR-95-315, CA-95-315-6-6)
Submitted: October 22, 2003
Decided: November 20, 2003
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Dexter Willis, Appellant Pro Se. Sandra Jane Hairston, Assistant
United States Attorney, Greensboro, North Carolina, David Bernard
Smith, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Dexter Willis seeks to appeal the district court’s order construing
his Fed. R. Civ. P. 60(b) motion as a 28 U.S.C. § 2255 (2000) motion
and dismissing it as successive, as recommended by a magistrate
judge. This court may grant a certificate of appealability only if the
appellant makes a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2) (2000). Where, as here, a district court
dismisses a § 2255 motion on procedural grounds, a certificate of
appealability will not issue unless the petitioner can demonstrate both
"(1) ‘that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right’ and (2) ‘that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.’" Rose v. Lee, 252 F.3d 676, 684 (4th
Cir. 2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Willis
has not made the requisite showing. See Miller-El v. Cockrell, 537
U.S. 322, ___, 123 S. Ct. 1029, 1040 (2003).
We construe Willis’s notice of appeal and informal brief on appeal
as an application to file a second or successive § 2255 motion. See
United States v. Winestock, 340 F.3d 200 (4th Cir.), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Sept 22, 2003) (No. 03-6548). In order
to obtain authorization to file a second or successive § 2255 motion,
a movant must assert claims based on either: (1) a new rule of consti-
tutional law, previously unavailable, made retroactive by the Supreme
Court to cases on collateral review; or (2) 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. 28 U.S.C. § 2244(b) (2000). Willis’s claims do not satisfy
either of these conditions. Therefore, we decline authorization for
Willis to file a successive § 2255 motion. Accordingly, we deny a cer-
tificate of appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED
2 UNITED STATES v. WILLIS

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