Bernard Smith v. Governor

Filing 920080808

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6078 BERNARD SMITH, Petitioner - Appellant, v. GOVERNOR, Respondent - Appellee. ______________ No. 08-6082 BERNARD SMITH, Petitioner - Appellant, v. GOVERNOR; ASSISTANT UNITED STATES ATTORNEY GENERAL, Respondents - Appellees. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (8:04-cv-03829-DKC; 8:04-cv-03955-DKC) Submitted: May 1, 2008 Decided: August 8, 2008 Before MOTZ, TRAXLER, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Bernard Smith, Appellant Pro Se. John Joseph Curran, Jr., Edward John Kelley, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; Steven Giles Hildenbrand, Assistant Attorney General, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. - 2 - PER CURIAM: Bernard Smith seeks to appeal the district court's orders treating his Fed. R. Civ. P. 60(b) motion filed in two related cases as a successive 28 U.S.C. 2254 (2000) petition, and denying the motion on that basis. The orders are 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 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 Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Additionally, we construe Smith'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 - 3 - 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). Smith's claims do not satisfy 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 - 4 -

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