LAW.coLAW.co

UNITED STATES of America, Plaintiff-Appellee, v. Timmy Allen RICE, a/k/a Timothy A. Rice, Defendant-Appellant

United States Court of Appeals for the Fourth Circuit2014-04-10No. No. 13-7790
565 F. App'x 274

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM:

Timmy Allen Rice seeks to appeal the district court’s order dismissing as untimely 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 procedural grounds, as in this case, a prisoner satisfies this standard by demonstrating both that the dispositive procedural ruling is debatable and that the motion states a debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

We have independently reviewed the record and conclude that Rice has not made the requisite showing. The district court lacked jurisdiction to consider Rice’s motion to vacate because it was a successive and unauthorized § 2255 motion. 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).

Accordingly, we deny a certificate of appealability 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.