United States v. Redd
United States v. Redd
Opinion of the Court
Dismissed in part, affirmed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Derrick Vincent Redd seeks to appeal the district court’s order treating his Fed. R.Civ.P. 59(e) motion as a successive 28 U.S.C. § 2255 (2012) motion, and dismissing it on that basis. He also seeks to appeal that part of the order denying his motion for a copy of Grand Jury transcripts. The part of the order denying his Rule 59(e) motion as successive and without authorization is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B)
We have independently reviewed the record and conclude that Redd has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss in part the appeal.
Additionally, we construe Redd’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
(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) (2012). Redd’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We also affirm in part that part of the district court’s order denying Redd’s motion for a copy of the Grand Jury transcripts on the reasoning of the district court. Redd v. United States, No. 1:97—cr-00006-JCC, 2013 WL 6185178 (E.D.Va. Nov. 26, 2103).
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 IN PART; AFFIRMED IN PART.
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