US v. Cline, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6119

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

OCTAVIUS S. CLINE, a/k/a Toby,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. Henry M. Herlong, Jr., Senior

District Judge. (6:02-cr-01358-HMH-12; 6:07-cv-70092-HMH; 6:09-

cv-70104-HMH; 6:10-cv-70303-HMH)

Submitted: May 19, 2011 Decided: May 24, 2011

Before TRAXLER, Chief Judge, and AGEE and KEENAN, Circuit

Judges.

Dismissed by unpublished per curiam opinion.

Octavius S. Cline, Appellant Pro Se. Maxwell B. Cauthen, III,

Assistant United States Attorney, Greenville, South Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Octavius S. Cline seeks to appeal the district court's order treating his Fed. R. Civ. P. 60(b) motion as a successive 28U.S.C.A. § 2255 (West Supp. 2010) 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) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28U.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 Cline has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal.

Additionally, we construe Cline'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. U.S.C.A.

§ 2255(h) (West Supp. 2010). Cline'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.

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