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    United States v. Witherspoon, 4th Cir. (2009)

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    This document summarizes a court opinion dismissing Marvin Witherspoon's appeal of a district court order treating his Rule 60(b) motions as successive 28 U.S.C. § 2255 motions. The court issues the following rulings: 1) It denies Witherspoon a certificate of appealability, finding he failed to make a substantial showing that constitutional rights were denied. 2) It construes his notice of appeal as a request for authorization to file a successive § 2255 motion, but denies such authorization because his claims do not meet the statutory criteria of involving newly discovered evidence or a new retroactive rule of constitutional law. 3) It dispenses with oral argument and dismisses the

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    United States v. Witherspoon, 4th Cir. (2009)

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    This document summarizes a court opinion dismissing Marvin Witherspoon's appeal of a district court order treating his Rule 60(b) motions as successive 28 U.S.C. § 2255 motions. The court issues the following rulings: 1) It denies Witherspoon a certificate of appealability, finding he failed to make a substantial showing that constitutional rights were denied. 2) It construes his notice of appeal as a request for authorization to file a successive § 2255 motion, but denies such authorization because his claims do not meet the statutory criteria of involving newly discovered evidence or a new retroactive rule of constitutional law. 3) It dispenses with oral argument and dismisses the

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    Filed: 2009-11-24 Precedential Status: Non-Precedential Docket: 09-6970

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    This document summarizes a court opinion dismissing Marvin Witherspoon's appeal of a district court order treating his Rule 60(b) motions as successive 28 U.S.C. § 2255 motions. The court issues the following rulings: 1) It denies Witherspoon a certificate of appealability, finding he failed to make a substantial showing that constitutional rights were denied. 2) It construes his notice of appeal as a request for authorization to file a successive § 2255 motion, but denies such authorization because his claims do not meet the statutory criteria of involving newly discovered evidence or a new retroactive rule of constitutional law. 3) It dispenses with oral argument and dismisses the

    Copyright:

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    17 views3 pages

    United States v. Witherspoon, 4th Cir. (2009)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court opinion dismissing Marvin Witherspoon's appeal of a district court order treating his Rule 60(b) motions as successive 28 U.S.C. § 2255 motions. The court issues the following rulings: 1) It denies Witherspoon a certificate of appealability, finding he failed to make a substantial showing that constitutional rights were denied. 2) It construes his notice of appeal as a request for authorization to file a successive § 2255 motion, but denies such authorization because his claims do not meet the statutory criteria of involving newly discovered evidence or a new retroactive rule of constitutional law. 3) It dispenses with oral argument and dismisses the

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 09-6970

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    MARVIN HAROLD WITHERSPOON,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Statesville.
    Richard L.
    Voorhees, District Judge. (5:07-cv-00021-RLV; 5:04-cr-00005-RLVDCK-1)

    Submitted:

    October 29, 2009

    Before MOTZ and


    Circuit Judge.

    SHEDD,

    Circuit

    Decided:

    Judges,

    and

    November 24, 2009

    HAMILTON,

    Senior

    Dismissed by unpublished per curiam opinion.

    Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray,


    Assistant United States Attorney, Asheville, North Carolina, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Marvin Harold Witherspoon seeks to appeal the district
    courts orders treating his Fed. R. Civ. P. 60(b) motions as
    successive 28 U.S.C.A. 2255 (West Supp. 2009) motions, and
    dismissing them on that basis and denying his motion to alter or
    amend the judgment.

    The orders are 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).
    issue

    absent

    constitutional
    prisoner

    A certificate of appealability will not

    substantial

    right.

    satisfies

    reasonable

    jurists

    constitutional

    28

    this
    would

    claims

    by

    showing
    U.S.C.

    the

    the

    denial

    2253(c)(2)

    standard
    find

    of

    by

    that

    (2006).

    demonstrating

    any

    district

    of

    assessment

    court

    is

    a
    A

    that

    of

    debatable

    the
    or

    wrong and that any dispositive procedural ruling by the district


    court is likewise debatable.

    Miller-El v. Cockrell, 537 U.S.

    322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
    Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

    We have

    independently reviewed the record and conclude that Witherspoon


    has not made the requisite showing.

    Accordingly, we deny a

    certificate of appealability and dismiss the appeal.


    Additionally,

    we

    construe

    Witherspoons

    notice

    of

    appeal and informal brief as an application to file a second or


    successive motion under 28 U.S.C.A. 2255.
    2

    United States v.

    Winestock, 340 F.3d 200, 208 (4th Cir. 2003).


    obtain

    authorization

    prisoner

    must

    discovered

    to

    assert

    evidence,

    file

    claims
    not

    successive
    based

    previously

    on

    In order to

    2255
    either:

    discoverable

    motion,

    (1) newly
    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. 2009).

    Witherspoons 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
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in
    aid

    the
    the

    materials
    decisional

    process.
    DISMISSED

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