United States of America v. Jimmy Brice

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY BRICE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:07-cr-00218-RJC-1;
3:16-cv-00246-RJC)
Submitted: April 29, 2019 Decided: May 9, 2019
Before GREGORY, Chief Judge, and KING and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jimmy Brice, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jimmy Brice seeks to appeal the district court’s order denying his Fed. R. Civ. P.
60(b) motion, which was in substance a successive 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 independently reviewed the record and conclude that Brice has not made
the requisite showing. Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Brice’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 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

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(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). Brice’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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