Ripley v. Robinson

Filing 920070228

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7103 VERNON RIPLEY, Petitioner - Appellant, versus DAVID ROBINSON, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (CA-04-280-1-GBL) Submitted: January 31, 2007 Decided: February 28, 2007 Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Vernon Ripley, Appellant Pro Se. Amy L. Marshall, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Vernon Ripley seeks to appeal the district court's order denying relief on his motions filed under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, in his underlying 28 U.S.C. 2254 (2000) petition. The court denied Ripley's Rule 60(b) motion on the grounds that it was a successive 2254 petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1) A (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 2253(c)(2) (2000). that A prisoner satisfies would this 28 U.S.C. standard that by any demonstrating reasonable jurists find assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Ripley has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Ripley's notice of appeal and informal brief as an application to file a second or successive petition under 28 U.S.C. 2254. United States v. Winestock, 340 - 2 - F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to file a successive 2254 petition, a prisoner must assert claims based on either: (1) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review; or (2) newly discovered evidence, not previously discoverable establish by by due diligence, and that would be sufficient that, but to for clear convincing evidence constitutional error, no reasonable factfinder would have found the petitioner guilty of the offense. Ripley's claims do not satisfy 28 U.S.C. 2244(b)(2) (2000). either of these criteria. Therefore, we deny authorization to file a successive 2254 petition. 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 - 3 -

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