Anthony Kelly v. South Carolina Department of C

Filing 920100609

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6465

ANTHONY TYRONE KELLY, a/k/a Anthony T. Kelley, Petitioner - Appellant, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; COLIE L. RUSHTON, Warden of McCormick Correctional Institution; HENRY MCMASTER, Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Terry L. Wooten, District Judge. (8:05-cv-00454-TLW)

Submitted:

June 1, 2010

Decided:

June 9, 2010

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Anthony Tyrone Kelly, Appellant Pro Se. Samuel Creighton Waters, Assistant Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Anthony Tyrone Kelly seeks to appeal the district

court's order treating his Fed. R. Civ. P. 60(b) motion as an unauthorized successive 28 U.S.C. § 2254 (2006) petition, and dismissing it on that basis. a circuit justice or The order is not appealable unless judge issues a certificate of

appealability. 369 F.3d 363,

28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 (4th Cir. 2004). A certificate of

appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2006). prisoner reasonable 28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a satisfies jurists this would standard find that by the demonstrating district that

court's

assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief both on procedural the When the district court the prisoner ruling must is

grounds,

demonstrate

that

dispositive

procedural

debatable, and that the petition states a debatable claim of the denial of a constitutional right. We have independently reviewed the Slack, 529 U.S. at 484-85. record and conclude that

Kelly has not made the requisite showing.

Accordingly, we deny

a certificate of appealability and dismiss the appeal.

2

Additionally, we construe Kelly's notice of appeal and informal brief as an application to file a second or successive § 2254 petition. (4th Cir. 2003). United States v. Winestock, 340 F.3d 200, 208 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 previously review; or (2) by newly due discovered diligence, evidence, that would not be

discoverable

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. § 2244(b)(2) (2006). these criteria.

28 U.S.C.

Kelly's claims do not satisfy either of we deny authorization to file a

Therefore,

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