David Felton v. Joseph Hall

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [998817196-2]; denying for certificate of appealability Originating case number: 1:11-cv-00759-JAB-LPA Copies to all parties and the district court/agency. [998885774]. Mailed to: David Felton. [12-6436]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6436

DAVID FELTON,
Petitioner - Appellant,
v.
JOSEPH HALL,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:11-cv-00759-JAB-LPA)

Submitted:

June 22, 2012

Decided:

June 29, 2012

Before KING, DAVIS, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Felton, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David
order

Felton

accepting

the

seeks

to

appeal

recommendation

of

the

court’s

magistrate

judge,

the

district

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

a

certificate

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th
Cir.

2004).

A

certificate

of

appealability

will

not

issue

absent “a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2) (2006).

When the district court

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

court’s

debatable

or

assessment

wrong.

Slack

of

the

constitutional

v.

McDaniel,

529

U.S.

claims

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 484-85.
We have independently reviewed the record and conclude
that Felton has not made the requisite showing.

2

Accordingly, we

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deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal.
Additionally,
and

informal

brief

we

as

construe

an

Felton’s

application

successive § 2254 petition.

to

notice
file

a

of

appeal

second

or

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

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

criteria.

would

28 U.S.C.

Felton’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