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United States v. Neil Johnson, 14-6398 (2014)

Court: Court of Appeals for the Fourth Circuit Number: 14-6398 Visitors: 12
Filed: Sep. 25, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6398 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NEIL CALVIN JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-00900-RBH-1; 4:10-cv-70246-RBH) Submitted: September 23, 2014 Decided: September 25, 2014 Before SHEDD, AGEE, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Neil Calv
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-6398


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NEIL CALVIN JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00900-RBH-1; 4:10-cv-70246-RBH)


Submitted:   September 23, 2014          Decided:   September 25, 2014


Before SHEDD, AGEE, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Neil Calvin Johnson, Appellant Pro Se. William Norman Nettles,
United States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Neil    Calvin    Johnson    seeks       to    appeal       the    district

court’s order denying, as successive, his motion to amend his 28

U.S.C. § 2255 (2012) motion.           The order is not appealable unless

a   circuit     justice       or     judge     issues           a    certificate        of

appealability. 28 U.S.C. § 2253(c)(1)(B) (2012).                        A certificate

of appealability will not issue absent “a substantial showing of

the denial of a constitutional right.”                    28 U.S.C. § 2253(c)(2)

(2012).    When the district court denies relief on the merits, a

prisoner     satisfies       this     standard       by         demonstrating       that

reasonable    jurists      would     find     that        the       district     court’s

assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 
529 U.S. 473
, 484 (2000); see Miller-El v.

Cockrell, 
537 U.S. 322
, 336-38 (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 a debatable claim of the

denial of a constitutional right.            
Slack, 529 U.S. at 484-85
.

            We have independently reviewed the record and conclude

that Johnson has not made the requisite showing.                         The district

court lacked jurisdiction to consider Johnson’s motion to amend

his § 2255 motion because it was a successive and unauthorized




                                        2
§ 2255    motion. ∗       Accordingly,       we   deny    a     certificate     of

appealability, deny as moot Johnson’s motion to expedite, and

dismiss the appeal.        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 the absence of pre-filing authorization from this
court, the district court lacks jurisdiction to hear a
successive § 2255 motion. See 28 U.S.C. § 2244(b)(3) (2012).



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Source:  CourtListener

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