United States v. Little
United States v. Little
Opinion of the Court
Edward Monroe Little seeks to appeal the district court’s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008) motion and its subsequent order denying his motion to alter or amend the judgment.
Little has also filed, as an attachment to his informal brief, a “Motion for § 2255 Second or Subsequent Filing.” In order to obtain authorization to file a second or successive § 2255 motion, a prisoner must assert claims based on either: (1) 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; 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). Little’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.
Because Little’s motion to alter or amend judgment was not filed within ten days of the district court’s order denying relief on his § 2255 motion as required by Fed.R.Civ.P. 59(e), the time for appealing that order expired before he filed his notice of appeal on December 9, 2008, and only the denial of the motion to alter or amend judgment was preserved for appeal. See Alston v. MCI Commc'ns Corp., 84 F.3d 705, 706 (4th Cir. 1996) (only a timely Rule 59(e) motion tolls time period for filing notice of appeal); Fed. R.App. P. 4(a)(4)(A)(iv)-(vi).
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