Owens v. Padula

Filing 920080407

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-7461

MICHAEL OWENS, Petitioner - Appellant, versus ANTHONY PADULA, Warden, Lee Correctional Institution; JON OZMINT; HENRY MCMASTER, Attorney General of the State of South Carolina, Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Charleston. G. Ross Anderson, Jr., District Judge. (2:06-cv-00639-GRA)

Submitted:

March 21, 2008

Decided:

April 7, 2008

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Michael Owens, Appellant Pro Se. Derrick K. McFarland, SOUTH CAROLINA BUDGET AND CONTROL BOARD, Columbia, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael Owens seeks to appeal the district court's order denying his Fed. R. Civ. P. 60(b) motion. Because that motion

directly attacked his conviction, the district court was without jurisdiction to consider the motion, which was, in essence, a successive and unauthorized 28 U.S.C. § 2254 (2000) petition. United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003) The district court's order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue See

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). We have

independently reviewed the record and conclude that Owens has not made the requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal. Additionally, we construe Owens' notice of appeal and informal brief as an application to file a second or successive

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petition under 28 U.S.C. § 2254. F.3d 200, 208 (4th Cir. 2003).

United States v. Winestock, 340

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. 28 U.S.C. § 2244(b)(2) (2000). Therefore,

Owens' claims do not satisfy either of these criteria.

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

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