Calvin Perry v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999573570-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999579654-2] Originating case number: 3:14-cv-00523-JRS-RCY Copies to all parties and the district court/agency. [999652812]. Mailed to: Calvin Perry. [15-6626]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6626

CALVIN PERRY,
Petitioner - Appellant,
v.
HAROLD CLARKE, Director of Department of Corrections,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:14-cv-00523-JRS-RCY)

Submitted:

August 10, 2015

Decided:

September 2, 2015

Before NIEMEYER, SHEDD, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Calvin Perry, Appellant Pro Se. Michael Thomas Judge, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Calvin Perry seeks to appeal the district court’s order
accepting

the

recommendation

of

the

magistrate

judge

and

dismissing his successive 28 U.S.C. § 2254 (2012) petition.

The

order is not appealable unless a circuit justice or judge issues
a certificate of appealability.

See 28 U.S.C. § 2253(c)(1)(A)

(2012); Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004).
certificate

of

appealability

will

not

issue

absent

A
“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012).
When
prisoner

the

district

court

satisfies

this

jurists

would

reasonable

denies

relief

standard
find

by

that

on

the

merits,

demonstrating

the

district

a

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

demonstrate

both

on

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
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
Perry has not made the requisite showing.

Accordingly, we deny

his motion for a certificate of appealability, deny leave to
proceed in forma pauperis, and dismiss the appeal.
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Additionally, we construe Perry’s notice of appeal, motion
for a certificate of appealability, and informal brief as an
application

to

file

a

second

or

successive

§ 2254

petition.

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) (2012).
either

of

these

criteria.

Perry’s claims do
Therefore,

we

deny

authorization to file a successive § 2254 petition.
We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

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