Opinion
21-7316
06-30-2022
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY A. MILTON, a/k/a G, Defendant-Appellant.
Gregory A. Milton, Appellant Pro Se. Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
UNPUBLISHED
Submitted: June 28, 2022
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, Chief District Judge. (5:95-cr-70074-MFU-1)
Gregory A. Milton, Appellant Pro Se.
Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Before NIEMEYER and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory A. Milton seeks to appeal the district court's orders (a) granting in part and denying in part Milton's authorized, successive 28 U.S.C. § 2255 motion; and (b) adjudicating Milton's postjudgment motions filed pursuant to Fed.R.Civ.P. 59(e) and 60(b). The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B); see generally United States v. McRae, 793 F.3d 392, 400 &n.7 (4th Cir. 2015). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court's assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S.Ct. 759, 773-74 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Milton has not made the requisite showing. Accordingly, although we grant Milton's motion to supplement his informal brief, 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
Milton correctly asserts that the district court erroneously dismissed his request for Rule 60(b) relief as a successive and unauthorized § 2255 motion because, in that motion, Milton challenged the integrity of the § 2255 proceedings; therefore, this was a "true" Rule 60(b) motion. See McRae, 793 F.3d at 397. In any event, Milton's Rule 60(b) motion nonetheless fails to state a debatable claim of the denial of a constitutional right. Specifically, the record conclusively establishes that the mandatory, consecutive life sentence imposed on Milton's 18 U.S.C. § 924(c) conviction resulted from application of then-operative 18 U.S.C. § 924(i)(1)-not the challenged "three-strikes" designation under 18 U.S.C. § 3559(c).