United States of America v. Mushulla Saleem Nixon, a/k/a M’Shulla

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7644
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MUSHULLA SALEEM NIXON, a/k/a M’Shulla,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Louise W. Flanagan, District Judge. (4:07-cr-00053-FL-1; 04-16-cv-00172-
FL)
Submitted: May 24, 2018 Decided: May 29, 2018
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mushulla Saleem Nixon, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mushulla Saleem Nixon 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. 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.” 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 (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 Nixon has not made
the requisite showing. Accordingly, we deny Nixon’s motion for a certificate of
appealability and dismiss the appeal.
Additionally, we construe Nixon’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:

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(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). Nixon’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 this court and argument would not aid the
decisional process.
DISMISSED

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