UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-6694

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TERENCE JEROME RICHARDSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, District

Judge. (3:00-cr-00383; 3:07-cv-00184)

Submitted: June 21, 2007 Decided: June 29, 2007

Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Terence Jerome Richardson, Appellant Pro Se. David John Novak,

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Terence Jerome Richardson appeals the order of the

district court dismissing for lack of jurisdiction Richardson’s

motion filed under Fed. R. Civ. P. 60(b) but characterized by the

district court as a successive 28 U.S.C. § 2255 (2000) motion.

Richardson may not appeal from the denial of relief in a

§ 2255 proceeding unless a circuit justice or judge issues a

certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000).

Richardson may satisfy this standard by demonstrating that

reasonable jurists would find both his constitutional claims are

debatable and that any dispositive procedural rulings by the

district court are debatable or wrong. See Miller-El v. Cockrell,

537 U.S. 322 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S.

941 (2001). We have reviewed the record and determine that

Richardson’s self-styled Motion under Rule 60(b) is, in substance,

a second motion attacking his conviction and sentence under 28

U.S.C. § 2255 (2000). See United States v. Winestock, 340 F.3d

200, 206 (4th Cir. 2003). We therefore treat Richardson’s notice

of appeal and appellate brief as a request for authorization from

this court to file a second § 2255 motion. See id. at 208. This

court may authorize a second or successive § 2255 motion only if

the applicant can show that his claims are based on (1) a new rule

of constitutional law, made retroactive to cases on collateral
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review by the Supreme Court, that was previously unavailable; or

(2) 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 him guilty of the offense. See 28 U.S.C. §§ 2244(b)(2),

2255. The applicant bears the burden of making a prima facie

showing of these requirements in his application. See In re

Fowlkes, 326 F.3d 542, 543 (4th Cir. 2003). In the absence of prefiling authorization, the district court is without jurisdiction to

entertain the motion. Evans v. Smith, 220 F.3d 306, 325 (4th Cir.

2000). 

After reviewing Richardson’s motion and the record in

this matter, we conclude that it does not meet the applicable

standard. We therefore deny Richardson’s request for a certificate

of appealability and dismiss the appeal. We further deny

Richardson’s implied request for authorization to file a second or

successive § 2255 motion. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process. 

DISMISSED