United States of America v. Terrance Germaine Thompson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6237
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE GERMAINE THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, District Judge. (4:13-cr-00843-RBH-8; 4:16-cv-03922-RBH)
Submitted: June 14, 2018 Decided: June 19, 2018
Before TRAXLER, DUNCAN, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Terrance Germaine Thompson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Terrance Germaine Thompson seeks to appeal the district court’s order denying his
Fed. R. Civ. P. 60(b) motion for reconsideration of the district court’s order dismissing as
untimely his 28 U.S.C. § 2255 (2012) motion. 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 reviewed the record and conclude that Thompson has not made the
requisite showing. Although the district court denied the Rule 60(b) motion on the merits,
the court lacked jurisdiction to do so because Thompson reasserted claims he raised in his
§ 2255 motion and, thus, the motion should have been construed as a successive 28 U.S.C.
§ 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (explaining how to
differentiate true Rule 60(b) motion from unauthorized second or successive habeas corpus
petition); United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (same). In the

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absence of prefiling authorization from this court, the district court lacked jurisdiction to
entertain Thompson’s successive § 2255 motion. See 28 U.S.C. § 2244(b)(3) (2012).
Accordingly, we deny a certificate of appealability and dismiss the appeal. 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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