Charles Smith v. Gene Johnson

Filing 920090911

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6660

CHARLES JERALL SMITH, Petitioner - Appellant, v. GENE M. JOHNSON, Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:05-cv-00196-MHL)

Submitted:

August 21, 2009

Decided:

September 11, 2009

Before MOTZ, KING, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Charles Jerall Smith, Appellant Pro Se. Karen Geneva Misbach, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Charles Jerall Smith seeks to appeal the magistrate judge's order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2254 (2006) petition, and dismissing it on that basis. * justice or judge The order is not appealable unless a circuit issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2006); 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." this find 28 U.S.C. § 2253(c)(2) (2006). by demonstrating court's that A prisoner satisfies jurists would

standard the

reasonable of the

district any

assessment procedural 537

constitutional debatable 336-38 or

claims, wrong.

and

dispositive v.

ruling, 322,

Miller-El

Cockrell,

U.S.

(2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-85 the (4th Cir. 2001). We Smith we deny have has a independently not made the of

reviewed requisite

record

and

conclude

showing.

Accordingly,

certificate

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

The parties consented to have the case decided by magistrate judge in accordance with 28 U.S.C. § 636(c) (2006).

*

a

2

petition

under

28

U.S.C.

§

2244

(2006).

United

States

v.

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

In order to

obtain authorization to file a successive § 2254 petition, a prisoner must assert claims based on either: constitutional law that was previously (1) a new rule of and made

unavailable

retroactive by the Supreme Court to cases on collateral review; or (2) newly discovered evidence that was not previously

discoverable by due diligence and 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. (2006). 28 U.S.C. § 2244(b)(2)

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 before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. DISMISSED

3