United States of America v. BEVERLY A. CLAIBORNE, JR., a/k/a BJ, a/k/a Tyrone Crooks

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7313
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BEVERLY A. CLAIBORNE, JR., a/k/a BJ, a/k/a Tyrone Crooks,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:99-cr-00297-REP-1; 3:20-cv-
00439-REP)
Submitted: April 12, 2021 Decided: May 25, 2021
Before DIAZ and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Beverly A. Claiborne, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Beverly A. Claiborne, Jr., seeks to appeal the district court’s order dismissing his
28 U.S.C. § 2255 motion as successive. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). 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). When, as here, 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.
Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473,
484 (2000)).
On appeal, Claiborne challenges his 18 U.S.C. § 924(c) conviction under United
States v. Davis, 139 S. Ct. 2319 (2019). While Claiborne’s motion in district court cited to
Davis, he did not challenge his § 924(c) conviction and instead asserted that he was
improperly sentenced to a mandatory life sentence based upon the district court’s allegedly
incorrect Sentencing Guidelines cross-reference regarding his 18 U.S.C. § 1959 conviction
(murder in aid of racketeering). We generally do not consider claims raised for the first
time on appeal, and Claiborne presents no argument as to why this untimely claim should
be considered.* Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020). Further, Claiborne
* We note that, prior to the decision in Davis, Claiborne was granted authorization
to challenge his § 924(c) conviction in a successive § 2255 motion based upon Johnson v.
United States, 576 U.S. 591 (2005). However, such a motion was never filed. In his
informal brief on appeal, Claiborne specifically states that the instant § 2255 motion was
(Continued)

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does not challenge the district court’s conclusion that his § 2255 motion was successive
and lacked authorization.
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
not based upon the prior authorization. We express no opinion on the merits of any motion
based upon the authorization or the timeliness of such a motion, if filed.

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