Skipper v. Langley

Filing 920060919

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6279

SHERMAN ELWOOD SKIPPER, Petitioner - Appellant, versus JENNIFER H. LANGLEY, Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (5:05-hc-00749-H)

Submitted:

August 31, 2006

Decided:

September 19, 2006

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Sherman Elwood Skipper, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM: Sherman Elwood Skipper seeks to appeal the district court's order treating his 28 U.S.C. § 2254 petition as successive and dismissing it on that basis. Skipper's motion for The district court also denied and his request for a

reconsideration

certificate of appealability. unless a circuit justice or

These orders are not appealable judge issues a certificate of

appealability.

28 U.S.C. § 2253(c)(1) (2000).

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) (2000).

A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any 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). record and conclude that We have independently reviewed the has not made the requisite

Skipper

showing.*

Construing Skipper's notice of appeal and informal brief as an application to file a second or successive petition under 28 U.S.C. § 2254, that application fails. 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 by due diligence, that would be sufficient to establish by clear and convincing evidence that, but - 2 -

*

Accordingly, we deny a certificate of appealability and dismiss the appeal. facts and legal before We dispense with oral argument because the are and adequately argument presented not in aid the the

contentions the court

materials

would

decisional process.

DISMISSED

for constitutional error, no reasonable factfinder would have found the petitioner guilty of the offense. 28 U.S.C. § 2244(b)(2) (2000). Skipper's claims do not satisfy either of these criteria. - 3 -