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  • Gary Boone v. Warden, Usp Lee County, 4th Cir. (2011)

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of Gary Dean Boone's 28 U.S.C. § 2241 petition and motion for reconsideration. The court reviewed the record and found no reversible error. Additionally, the court construed Boone's notice of appeal and brief as an application to file a second or successive 28 U.S.C. § 2255 motion, but denied authorization because Boone's claims did not satisfy the criteria of newly discovered evidence or a new retroactive rule of constitutional law. The court affirmed the lower court's rulings and denied Boone's motion to place the appeal in abeyance.

    Original Description:

    Filed: 2011-12-30 Precedential Status: Non-Precedential Docket: 11-6872

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of Gary Dean Boone's 28 U.S.C. § 2241 petition and motion for reconsideration. The court reviewed the record and found no reversible error. Additionally, the court construed Boone's notice of appeal and brief as an application to file a second or successive 28 U.S.C. § 2255 motion, but denied authorization because Boone's claims did not satisfy the criteria of newly discovered evidence or a new retroactive rule of constitutional law. The court affirmed the lower court's rulings and denied Boone's motion to place the appeal in abeyance.

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    11 views3 pages

    Gary Boone v. Warden, Usp Lee County, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of Gary Dean Boone's 28 U.S.C. § 2241 petition and motion for reconsideration. The court reviewed the record and found no reversible error. Additionally, the court construed Boone's notice of appeal and brief as an application to file a second or successive 28 U.S.C. § 2255 motion, but denied authorization because Boone's claims did not satisfy the criteria of newly discovered evidence or a new retroactive rule of constitutional law. The court affirmed the lower court's rulings and denied Boone's motion to place the appeal in abeyance.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 11-6872

    GARY DEAN BOONE,


    Petitioner - Appellant,
    v.
    WARDEN, USP LEE COUNTY,
    Respondent Appellee,
    and
    H. J. MARBERRY, Warden;
    STATES OF AMERICA,

    WARDEN,

    FCI,

    ALLENWOOD;

    UNITED

    Respondents.

    Appeal from the United States District Court for the Western
    District of Virginia, at Roanoke.
    Samuel G. Wilson, District
    Judge. (7:11-cv-00204-SGW)

    Submitted:

    December 13, 2011

    Before AGEE and


    Circuit Judge.

    DIAZ,

    Circuit

    Decided:

    Judges,

    and

    December 30, 2011

    HAMILTON,

    Senior

    Affirmed by unpublished per curiam opinion.

    Gary Dean Boone, Appellant Pro Se.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Gary Dean Boone appeals the district courts orders
    denying his 28 U.S.C.A. 2241 (West 2006 & Supp. 2011) petition
    and denying his motion for reconsideration.
    the record and find no reversible error.

    We have reviewed

    Accordingly, we affirm

    for the reasons stated by the district court.

    Boone v. Warden,

    USP Lee County, No. 7:11-cv-00204-SGW (W.D. Va. May 5, 2011; May
    25, 2011).
    Additionally, we construe Boones notice of appeal and
    informal brief as an application to file a second or successive
    28

    U.S.C.A.

    2255

    (West

    Supp.

    2011)

    motion.

    See

    Rice

    v.

    Rivera, 617 F.3d 802, 808 (4th Cir. 2010); United States v.
    Winestock, 340 F.3d 200, 208 (4th Cir. 2003).
    obtain

    authorization

    prisoner

    must

    discovered

    to

    assert

    evidence,

    file
    claims

    not

    successive

    based

    on

    previously

    In order to

    2255

    motion,

    either:

    (1) newly

    discoverable

    by

    due

    diligence, that would be sufficient to establish by clear and


    convincing

    evidence

    that,

    but

    for

    constitutional

    error,

    no

    reasonable factfinder would have found the movant guilty of the


    offense; or (2) a new rule of constitutional law, previously
    unavailable, made retroactive by the Supreme Court to cases on
    collateral review.

    28 U.S.C.A. 2255(h).

    not

    of

    satisfy

    either

    these

    criteria.

    Boones claims do
    Therefore,

    authorization to file a successive 2255 motion.


    2

    we

    deny

    Accordingly, we affirm.
    place the appeal in abeyance.

    We deny Boones motion to

    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.
    AFFIRMED

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