Marion Pearson, Jr. v. Theodis Beck

Filing 920100323

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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