Dwayne Johnson v. Virginia Department of Correct, No. 08-8193 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8193 DWAYNE L. JOHNSON, Petitioner - Appellant, v. VIRGINIA DEPARTMENT OF CORRECTIONS, Director, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:07-cv-358) Submitted: July 30, 2009 Decided: August 3, 2009 Before MOTZ, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Dwayne L. Johnson, Appellant Pro Se. THE ATTORNEY GENERAL OF VIRGINIA, Appellee. Leah A. Darron, OFFICE OF Richmond, Virginia, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne L. Johnson seeks to appeal the district court s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of 28 U.S.C. § 2253(c)(1) (2006). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. standard § 2253(c)(2) by (2006). demonstrating that A prisoner reasonable satisfies jurists this would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). conclude that We have Johnson independently has not reviewed made the the record requisite and showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Johnson U.S.C. § 2244 also (2006) § 2254 petition. attached motion to to his file a informal brief successive 28 a 28 U.S.C. To the extent Johnson was attempting to file a § 2244 application, it is premature as to the claims that are the subject of his first § 2254 petition and are pending on 2 appeal. To the extent he is attempting to seek permission to file new claims in a second § 2254 petition, his claims do not satisfy the criteria to grant a § 2244 motion. 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. satisfy 28 U.S.C. § 2244(b)(2). either of these Johnson s claims do not criteria. 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
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