Melvin Dodson v. Department of Corrections

Filing 920090622

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8402

MELVIN CORNNELL DODSON, Petitioner ­ Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant ­ Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (7:08-cv-00566-jlk-mfu)

Submitted:

June 18, 2009

Decided:

June 22, 2009

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Melvin Cornnell Dodson, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Melvin Cornnell Dodson seeks to appeal the district court's dismissal of his second 28 U.S.C. § 2254 (2006) petition as successive because Dodson failed to obtain certification to file a successive petition from this court. appealable unless a circuit justice or The order is not judge issues a A "a

certificate of appealability. certificate of

28 U.S.C. § 2253(c)(1) (2006). will not issue absent

appealability

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

standard

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 We have independently has not made motion reviewed the for the record and

conclude

Dodson deny

requisite a

showing. of

Accordingly,

Dodson's

certificate

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

application

second

successive petition under 28 U.S.C. § 2254.

United States v. In order to

Winestock, 340 F.3d 200, 208 (4th Cir. 2003). 2

obtain

authorization

to

file

a

successive

28

U.S.C.

§ 2254

petition, the claims presented must not have been presented in a prior petition and must be based on either: (1) "a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable;" or (2) newly discovered evidence, not previously discoverable through the exercise of 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 applicant guilty of the underlying offense." 28 U.S.C.

§ 2244(b)(1), (2) (2006). of the above criteria.

Dodson's claim does not satisfy any Accordingly, we deny Dodson

authorization to file a successive 28 U.S.C. § 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

3