Monroe v. Johnson, No. 05-7392 (4th Cir. 2006)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7392 JACOB DALE MONROE, Petitioner - Appellant, versus GENE M. JOHNSON, Director Department of Corrections, of Virginia Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (CA-04-271-2-HCM) Submitted: March 23, 2006 Decided: March 28, 2006 Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges. Dismissed by unpublished per curiam opinion. Jacob Dale Monroe, 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 Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Jacob Dale Monroe seeks to appeal the district court s order denying relief on his motion for reconsideration, which the district court properly construed as a successive 28 U.S.C. § 2254 (2000) petition. An appeal may not be taken from the final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. (2000). 28 U.S.C. § 2253(c)(1) A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. U.S.C. § 2253(c)(2) (2000). 28 A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Monroe has not made the requisite showing. Additionally, we construe Monroe s notice of appeal and informal brief on appeal as an application to file a second or successive § 2254 petition. See United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). To obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) a new rule of constitutional - 2 - law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review; or (2) newly discovered evidence sufficient to establish that no reasonable fact finder would have found the movant guilty. 28 U.S.C. §§ 2244(b)(3)(C), 2255 (2000). Monroe s claim does not satisfy either of these conditions. For these reasons, we deny a certificate of appealability, decline to authorize Monroe to file a successive § 2254 petition, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 3 -
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