Warren Chase v. Commissioner of Maryland

Filing 920100521

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6137

WARREN CHASE, Petitioner - Appellant, v. COMMISSIONER OF MARYLAND DEPARTMENT OF CORRECTIONS; ATTORNEY GENERAL OF MARYLAND, Respondents - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:09-cv-03009-CCB)

Submitted:

April 29, 2010

Decided:

May 21, 2010

Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Warren Chase, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Warren Chase filed a hybrid complaint in the district court seeking relief under 28 U.S.C. § 2254 (2006) and seeking an order transferring him to a different institution. That part

of the order dismissing his § 2254 petition as successive and without authorization from this court is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). issue absent "a A certificate of appealability will not showing U.S.C. standard find the that of the denial of a A that the or

substantial 28

constitutional prisoner reasonable

right." this would by

§ 2253(c)(2) by any

(2006).

satisfies jurists

demonstrating assessment is of

constitutional

claims

district

court

debatable

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). We have

independently reviewed the record and conclude Chase has not made the requisite showing. Accordingly, we deny a certificate

of appealability and dismiss in part the appeal. Additionally, we construe Chase's notice of appeal and informal brief as an application to file a second or successive petition under 28 U.S.C. § 2254. 2 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: (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. not satisfy 28 U.S.C. § 2244(b)(2) (2006). either of these criteria. Chase's claims do Therefore, we deny

authorization to file a successive § 2254 petition. Insofar as Chase sought an order compelling the

Respondents to transfer him to another institution, we note "an inmate has no justifiable expectation that he will be Olim

incarcerated in any particular prison within a State[."] v. Wakinekona, 461 U.S. 238, 245 (1983).

We further note Chase

failed to state a claim under the Americans With Disabilities Act of 1990. See Pennsylvania Dep't of Corrections v. Yeskey, Accordingly, Chase's claim in this

524 U.S. 206, 212-13 (1998).

regard was without merit and we affirm in part the district court's order. We deny a certificate of appealability and dismiss in part and affirm in part the district court's order. 3 We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART

4