United States of America v. Barry Elijah Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7387
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY ELIJAH DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:06-cr-00005-MJG-1)
Submitted: November 13, 2012 Decided: November 16, 2012
Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Barry Elijah Davis, Appellant Pro Se. Jonathan Biran, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Barry Elijah Davis seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60 motion as a
successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion, and
dismissing it on that basis. Davis also seeks to appeal the
court’s order denying his motion for reconsideration. The
orders are not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2006). 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) (2006). 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 (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 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 Davis has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in

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forma pauperis, and dismiss the appeal. We also deny Davis’s
motions for a transcript at government expense and to supplement
the record.
Additionally, we construe Davis’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 file a
successive § 2255 motion, a prisoner must assert claims based on
either: (1) newly discovered evidence, not previously
discoverable by due diligence, that would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found
the movant guilty of the offense; or (2) a new rule of
constitutional law, previously unavailable, made retroactive by
the Supreme Court to cases on collateral review. 28 U.S.C.A.
§ 2255(h) (West Supp. 2012). Davis’s claims do not satisfy
either of these criteria. Therefore, we deny authorization to
file a successive § 2255 motion.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED

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