Byron Stewart v. Robert Koppel

Filing 920080527

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-7655

BYRON MONROE STEWART, Petitioner - Appellant, v. ROBERT KOPPEL, Warden; STATE OF MARYLAND, Respondents - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:07-cv02866-AMD)

Submitted: May 22, 2008

Decided:

May 27, 2008

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

Dismissed by unpublished per curiam opinion.

Byron Monroe Stewart, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Byron Monroe Stewart seeks to appeal the district court's order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2254 (2000) petition, and dismissing it on that basis. 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 Stewart has not made the requisite showing. Accordingly, we deny a certificate of

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

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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. Stewart's claims do not 28 U.S.C. § 2244(b)(2) (2000). either of these criteria.

satisfy

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

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