Leonard Arline v. Commonwealth of Virginia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999273695-2]; denying for certificate of appealability Originating case number: 3:13-cv-00498-HEH Copies to all parties and the district court/agency. [999344749].. [13-7966]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7966

LEONARD H. ARLINE,
Petitioner – Appellant,
v.
COMMONWEALTH OF VIRGINIA,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:13-cv-00498-HEH)

Submitted:

April 24, 2014

Decided:

April 28, 2014

Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Leonard H. Arline, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Leonard H. Arline seeks to appeal the district court’s
order treating his Fed. R. Civ. P. 60(b) motion as a successive
28

U.S.C.

§ 2254

unauthorized.
justice

or

(2012)

The

judge

order

issues

petition,
is

a

not

and

dismissing

appealable

certificate

of

unless

it

a

as

circuit

appealability.

28

U.S.C. § 2253(c)(1)(A) (2012); Reid v. Angelone, 369 F.3d 363,
369 (4th Cir. 2004).
issue

absent

“a

A certificate of appealability will not

substantial

constitutional right.”

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

of

a

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 assessment of the constitutional
claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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 Arline has not made the requisite showing.

Accordingly, we

deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal.
2

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Additionally,
and

informal

brief

we

as

Pg: 3 of 3

construe

an

Arline’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) (2012).
these

criteria.

would

28 U.S.C.

Arline’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
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED

3