From Casetext: Smarter Legal Research

U.S. v. Lassiter

United States Court of Appeals, Fourth Circuit
Jan 26, 2007
215 F. App'x 230 (4th Cir. 2007)

Opinion

No. 06-7509.

Submitted: November 3, 2006.

Decided: January 26, 2007.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:01-cr-00154-HCM; 2:06-cv-00473-HCM).

Grady Lassiter, Jr., Appellant Pro Se. Raymond Edward Patricco, Jr., Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.


Grady Lassiter, Jr., 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 (2000) 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) (2000); 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." 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Lassiter has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.

Additionally, we construe Lassiter's notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C. § 2255. 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) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review; or (2) 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. 28 U.S.C. §§ 2244(b)(2), 2255 (2000). Lassiter'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.


Summaries of

U.S. v. Lassiter

United States Court of Appeals, Fourth Circuit
Jan 26, 2007
215 F. App'x 230 (4th Cir. 2007)
Case details for

U.S. v. Lassiter

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Grady LASSITER, Jr.…

Court:United States Court of Appeals, Fourth Circuit

Date published: Jan 26, 2007

Citations

215 F. App'x 230 (4th Cir. 2007)

Citing Cases

Lassiter v. United States

Grady LASSITER, Jr., petitioner, v. UNITED STATES.Case below, 215 Fed.Appx. 230. Petition for writ of…