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    United States v. James Browning, JR., 4th Cir. (2011)

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    This document summarizes a United States Court of Appeals case in which James Browning appealed a district court's denial of his Rule 60(b) motion and related motions. The Court of Appeals denied Browning's request for a certificate of appealability, finding he did not demonstrate the denial of a constitutional right. The Court also construed Browning's appeal as a second/successive 28 U.S.C. §2255 motion and denied authorization, as his claims did not meet the criteria for such motions. The Court therefore dismissed Browning's appeal.

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    United States v. James Browning, JR., 4th Cir. (2011)

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    Scribd Government Docs
    38 views4 pages
    This document summarizes a United States Court of Appeals case in which James Browning appealed a district court's denial of his Rule 60(b) motion and related motions. The Court of Appeals denied Browning's request for a certificate of appealability, finding he did not demonstrate the denial of a constitutional right. The Court also construed Browning's appeal as a second/successive 28 U.S.C. §2255 motion and denied authorization, as his claims did not meet the criteria for such motions. The Court therefore dismissed Browning's appeal.

    Original Description:

    Filed: 2011-10-03 Precedential Status: Non-Precedential Docket: 11-6690

    Original Title

    United States v. James Browning, Jr., 4th Cir. (2011)

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    This document summarizes a United States Court of Appeals case in which James Browning appealed a district court's denial of his Rule 60(b) motion and related motions. The Court of Appeals denied Browning's request for a certificate of appealability, finding he did not demonstrate the denial of a constitutional right. The Court also construed Browning's appeal as a second/successive 28 U.S.C. §2255 motion and denied authorization, as his claims did not meet the criteria for such motions. The Court therefore dismissed Browning's appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    38 views4 pages

    United States v. James Browning, JR., 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case in which James Browning appealed a district court's denial of his Rule 60(b) motion and related motions. The Court of Appeals denied Browning's request for a certificate of appealability, finding he did not demonstrate the denial of a constitutional right. The Court also construed Browning's appeal as a second/successive 28 U.S.C. §2255 motion and denied authorization, as his claims did not meet the criteria for such motions. The Court therefore dismissed Browning's appeal.

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    of 4

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 11-6690

    UNITED STATES OF AMERICA,


    Plaintiff Appellee,
    v.
    JAMES HOLMAN BROWNING, JR.,
    Defendant Appellant.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. James A. Beaty, Jr.,
    Chief District Judge.
    (1:03-cr-00036-JAB-2; 1:06-cv-00024-WLOWWD)

    Submitted:

    September 12, 2011

    Decided:

    October 3, 2011

    Before MOTZ, KING, and DAVIS, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    James Holman Browning, Jr., Appellant Pro Se.


    Robert Michael
    Hamilton, Angela
    Hewlett
    Miller,
    Assistant
    United
    States
    Attorneys, Greensboro, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    James
    district

    Holman

    courts

    magistrate

    judge

    Browning,

    order
    and

    adopting

    denying

    Jr.,
    the

    courts

    adoption

    of

    to

    appeal

    recommendation

    Brownings

    motions under Fed. R. Civ. P. 60(b). *


    district

    seeks

    original

    of

    and

    the
    the

    amended

    Browning also appeals the

    the

    recommendation

    of

    the

    magistrate judge and denial, in that same order, of his motions


    seeking an evidentiary hearing, default judgment, to compel a
    response, and to resubmit.
    The order as to which Browning seeks review is not
    appealable

    unless

    circuit

    certificate of appealability.
    A

    certificate

    of

    justice

    or

    judge

    issues

    28 U.S.C. 2253(c)(1)(B) (2006).

    appealability

    will

    not

    issue

    absent

    substantial showing of the denial of a constitutional right.


    28 U.S.C. 2253(c)(2).
    on

    the

    merits,

    demonstrating
    district
    debatable

    that

    courts
    or

    When the district court denies relief

    prisoner
    reasonable

    assessment

    wrong.

    satisfies

    Slack

    jurists

    this

    would

    of

    the

    v.

    McDaniel,

    standard

    find

    constitutional
    529

    U.S.

    by

    that

    the

    claims

    is

    473,

    484

    (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).


    *

    Because the Rule 60(b) motions directly attacked


    Brownings convictions, they were, in essence, an unauthorized
    and successive 28 U.S.C.A. 2255 (West Supp. 2011) motion over
    which the district court lacked jurisdiction.
    See United
    States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).

    When 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

    debatable

    claim of the denial of a constitutional right.

    Slack, 529 U.S.

    at

    the

    484-85.

    conclude

    We

    that

    have

    independently

    Browning

    has

    not

    reviewed

    made

    the

    record

    requisite

    and

    showing.

    Accordingly, we deny a certificate of appealability and dismiss


    the appeal.
    Additionally, we construe Brownings notice of appeal
    and

    informal

    briefs

    as

    an

    successive 2255 motion.

    application

    to

    file

    second

    Winestock, 340 F.3d at 208.

    or

    In order

    to obtain authorization to file a successive 2255 motion, a


    prisoner

    must

    discovered

    assert

    evidence,

    claims
    not

    based

    on

    previously

    either:

    (1) newly

    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.
    not

    satisfy

    either

    28 U.S.C.A. 2255(h).
    of

    these

    criteria.

    Brownings claims do
    Therefore,

    authorization to file a successive 2255 motion.

    we

    deny

    We dispense with oral argument because the facts and


    legal
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in
    aid

    the
    the

    materials
    decisional

    process.

    DISMISSED

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