103 FAPPX 708 - United States v. Hainesworth

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-6318



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KATO HAINESWORTH,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-98-30)


Submitted:   June 18, 2004                  Decided:   July 16, 2004


Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kato Hainesworth, Appellant Pro Se. S. David Schiller, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Kato Hainesworth appeals the order of the district court

dismissing for lack of jurisdiction Hainesworth’s motion filed

under Fed. R. Civ. P. 60(b) but characterized by the district court

as a successive

28 U.S.C. § 2255

 (2000) motion.

          Hainesworth may not appeal from the denial of relief in

a § 2255 proceeding unless a circuit justice or judge issues a

certificate of appealability.        See

28 U.S.C. § 2253

(c)(1) (2000).

Hainesworth   may   satisfy   this    standard   by   demonstrating   that

reasonable jurists would find both that his constitutional claims

are debatable and that any dispositive procedural rulings by the

district court are debatable or wrong.       See Miller-El v. Cockrell,

537 U.S. 322

 (2003); Slack v. McDaniel,

529 U.S. 473, 484

 (2000);

Rose v. Lee,

252 F.3d 676, 683

 (4th Cir.), cert. denied,

534 U.S. 941

 (2001).    We have reviewed the record and determine that

Hainesworth’s self-styled Motion under Rule 60(b) is, in substance,

a second motion attacking his conviction and sentence under

28 U.S.C. § 2255

 (2000).     See United States v. Winestock,

340 F.3d 200, 206

 (4th Cir. 2003).     We therefore treat Hainesworth’s notice

of appeal and appellate brief as a request for authorization from

this court to file a second § 2255 motion.        See id. at 208.     This

court may authorize a second or successive § 2255 motion only if

the applicant can show that his claims are based on (1) a new rule

of constitutional law, made retroactive to cases on collateral


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review by the Supreme Court, that was previously unavailable; or

(2) newly discovered evidence that, if proven and viewed in light

of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that no reasonable factfinder would

have found him guilty of the offense.     See

28 U.S.C. §§ 2244

(b)(2),

2255.    The applicant bears the burden of making a prima facie

showing of these requirements in his application.           See In re

Fowlkes,

326 F.3d 542, 543

 (4th Cir. 2003).     In the absence of pre-

filing authorization, the district court is without jurisdiction to

entertain the motion.    Evans v. Smith,

220 F.3d 306, 325

 (4th Cir.

2000).

            After reviewing Hainesworth’s motion and the record in

this matter, we conclude that it does not meet the applicable

standard.      We   therefore   deny   Hainesworth’s   request   for   a

certificate of appealability and dismiss the appeal.        We further

deny Hainesworth’s implied request for authorization to file a

second or 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




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