UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6477

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN STEVENS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, Senior District Judge. (2:11-cr-00073-RBS-LRL-2; 2:16- cv-00452-RBS)

Submitted: March 1, 2021 Decided: March 4, 2021

Before AGEE, DIAZ, and THACKER, Circuit Judges.

Dismissed and authorization granted by unpublished per curiam opinion.

Kevin Stevens, Jr., Appellant Pro Se. Aidan Taft Grano, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Kevin Stevens, Jr., seeks to appeal the district court’s order denying relief on his

motion to reconsider the denial of his

motion. In 2016, this court granted

Stevens’ motion for authorization to file a second or successive § 2255 motion. The court

denied the motion and we denied a certificate of appealability and dismissed the appeal.

See United States v. Stevens,

(4th Cir. 2019) (No. 16-7686). Over three

years after the § 2255 motion was denied, Stevens filed the subject motion to reconsider,

asserting that the rule announced in United States v. Davis,

(2019) (holding

that residual clause set forth in § 924(c)(3)(B) is unconstitutionally vague) is a new rule of

constitutional law that called into question the validity of two of his convictions. The

district court denied the motion on the merits and Stevens appealed. We conclude that

Stevens’ motion to reconsider was the functional equivalent of a § 2255 motion and the

district court did not have jurisdiction to consider it. See United States v. Winestock,

(4th Cir. 2003) (holding that “a district court has no discretion to rule on a

Rule 60(b) motion that is functionally equivalent to a successive” § 2255 motion),

abrogated in part on other grounds by United States v. McRae,

(4th Cir.

2015). Accordingly, we deny a certificate of appealability and dismiss Stevens’ appeal.

Consistent with our decision in Winestock, we construe Stevens’ notice of appeal

and informal brief as an application to file a second or successive § 2255 motion in light

of the rule announced in Davis. Winestock,

. We may authorize the filing

of a successive § 2255 motion only if Stevens relies on either (1) newly discovered

evidence, or “(2) a new rule of constitutional law, made retroactive to cases on collateral

2 review by the Supreme Court, that was previously unavailable.”

(h).

Because of our recent decision In re Thomas, __ F.3d __, __, No. 19-292,

, at *1 (4th Cir. Feb. 23, 2021) (granting authorization to file second or successive

§ 2255 motion), we conclude that Stevens has met his burden of showing that his claim

relies on a new rule of constitutional law made retroactive to cases on collateral review and

that he “has stated a plausible claim for relief that warrants further exploration by the

district court.” Id.,

, at *6.

Accordingly, we deny a certificate of appealability and dismiss the appeal, but we

grant Stevens authorization to file a second or successive § 2255 motion in the district

court. 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; AUTHORIZATION GRANTED

3