Corey McNeil v. Loretta Kelly

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cv-01400-TSE-TCB Copies to all parties and the district court/agency. [998576928]. Mailed to: McNeil. [11-6075]

Appeal: 11-6075

Document: 12

Date Filed: 04/27/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6075

COREY PERNELL MCNEIL,
Petitioner - Appellant,
v.
LORETTA K. KELLY,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:10-cv-01400-TSE-TCB)

Submitted:

April 21, 2011

Decided:

April 27, 2011

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Corey Pernell McNeil, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-6075

Document: 12

Date Filed: 04/27/2011

Page: 2 of 3

PER CURIAM:
Corey

Pernell

McNeil

seeks

to

appeal

the

district

court’s order dismissing his 28 U.S.C. § 2254 (2006) petition as
an

unauthorized

appealable

successive

unless

a

petition.

circuit

of

justice

not
a
A

will

judge

is
issues

appealability

or

order

28 U.S.C. § 2253(c)(1) (2006).

certificate of appealability.
certificate

The

not

issue

absent

“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006).
relief

on

the

demonstrating
district
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

the

claims

constitutional
529

by

is

473,

484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable
claim of the denial of a constitutional right.

Slack, 529 U.S.

at

the

484-85.

conclude

that

We

have

McNeil

independently
has

not

reviewed

made

the

record

requisite

and

showing.

Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally,
and

informal

brief

as

we
an

construe

McNeil’s

application
2

to

notice
file

a

of

appeal

second

or

Appeal: 11-6075

Document: 12

Date Filed: 04/27/2011

successive § 2254 petition.

Page: 3 of 3

United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003); see Rice v. Rivera, 617 F.3d 802,
808 (4th Cir. 2010).

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)

previously

discoverable

newly

by

due

discovered
diligence,

evidence,
that

not

would

be

sufficient to establish by clear and convincing evidence that,
but

for

constitutional

error,

no

reasonable

factfinder

have found the petitioner guilty of the offense.
§ 2244(b)(2) (2006).
these

criteria.

would

28 U.S.C.

McNeil’s claims do not satisfy either of

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

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
DISMISSED

3