Case: 17-10226      Document: 00514631531         Page: 1    Date Filed: 09/06/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                      No. 17-10226
                                                                                  FILED
                                                                          September 6, 2018
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff-Appellee

v.

JOHN RAY CHEEK,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-1514


Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       John Ray Cheek, federal prisoner # 42969-177, filed a pleading that was
labeled as requesting review of sentence under 18 U.S.C. § 3472(e)(3)(A),(B)(i)
but was docketed as a notice of appeal.             The district court denied him a
certificate of appealability (COA), and he now seeks both a COA and
authorization to proceed in forma pauperis (IFP) from this court.
       Liberally construed, we will treat Cheek’s filing as a motion for
authorization to file a successive § 2255 petition. See 28 U.S.C. §§ 2255(h),


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-10226     Document: 00514631531     Page: 2   Date Filed: 09/06/2018


                                  No. 17-10226

2244(b)(3)(A). This court may authorize the filing of a second or successive
§ 2255 motion only if the movant makes a prima facie showing that his claims
rely on either:
      (1) 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 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.
§ 2255(h); see also § 2244(b)(3)(C).
      However, Cheek fails to make the necessary showing to file a successive
petition under § 2255(h).     Accordingly, Cheek’s COA motion is DENIED.
Further, Cheek’s IFP motion is DENIED as moot.




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