Marion Pearson, Jr. v. Theodis Beck

Filing 920100323

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7894 MARION EDWARD PEARSON, JR., Petitioner - Appellant, v. THEODIS BECK, Respondent Appellee, and RANDALL LEE, Respondent. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Graham C. Mullen, Senior District Judge. (1:06-cv-00069-GCM) Submitted: March 5, 2010 Decided: March 23, 2010 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Marion Edward Pearson, Jr., Appellant Pro Se. Mary Carla Hollis, Assistant Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marion Edward Pearson, Jr., seeks to appeal the district court's orders denying his motions filed pursuant to Fed. R. Civ. P. 60(b) and Fed. R. Civ. P. 59(e). not appealable unless a circuit justice or The orders are judge issues a certificate of appealability. Reid v. Angelone, of 369 F.3d 28 U.S.C. 2253(c)(1) (2006); 363, 369 (4th not Cir. issue 2004). absent A "a certificate appealability will 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 Pearson requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Pearson's notice of appeal and informal brief as an application 28 U.S.C. to file a second or successive petition under 2254 (2006). United In States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). 2 order to obtain authorization to file a successive 2254 (1) a made petition, a prisoner must assert claims based on either: new rule of constitutional law, previously unavailable, 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. 28 U.S.C. 2244(b)(2) (2006). Pearson'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 the the materials decisional would aid process. DISMISSED 3

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