Dwayne Johnson v. Virginia Department of Correct

Filing 920090803

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8193

DWAYNE L. JOHNSON, Petitioner - Appellant, v. VIRGINIA DEPARTMENT OF CORRECTIONS, Director, Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:07-cv-358)

Submitted:

July 30, 2009

Decided:

August 3, 2009

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Dwayne L. Johnson, Appellant Pro Se. THE ATTORNEY GENERAL OF VIRGINIA, Appellee.

Leah A. Darron, OFFICE OF Richmond, Virginia, for

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Dwayne L. Johnson seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. The

order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of appealability 28 U.S.C. § 2253(c)(1) (2006). will not issue absent "a

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2006). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

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). that We have independently has not made reviewed the the record and

conclude

Johnson

requisite

showing.

Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Johnson U.S.C. § 2244 also attached motion to to his a informal brief 28 a 28

(2006)

file

successive

U.S.C.

§ 2254 petition.

To the extent Johnson was attempting to file a

§ 2244 application, it is premature as to the claims that are the subject of his first § 2254 petition and are pending on 2

appeal.

To the extent he is attempting to seek permission to

file new claims in a second § 2254 petition, his claims do not satisfy the criteria to grant a § 2244 motion. 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 for constitutional error, no

reasonable factfinder would have found the petitioner guilty of the offense. satisfy 28 U.S.C. § 2244(b)(2). of these criteria. Johnson's claims do not Therefore, we deny

either

authorization to file a successive § 2254 petition. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. DISMISSED

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