Charles Smith v. Gene Johnson, No. 09-6660 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6660 CHARLES JERALL SMITH, Petitioner - Appellant, v. GENE M. JOHNSON, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:05-cv-00196-MHL) Submitted: August 21, 2009 Decided: September 11, 2009 Before MOTZ, KING, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Charles Jerall Smith, Appellant Pro Se. Karen Geneva Misbach, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles Jerall Smith seeks to appeal the magistrate judge s order 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. * justice or The order is not appealable unless a circuit judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (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). this standard find the by demonstrating district claims, and any wrong. Miller-El court s reasonable assessment dispositive v. that A prisoner satisfies of procedural Cockrell, 537 jurists the constitutional ruling, U.S. 322, would debatable 336-38 or (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, reviewed requisite 683-85 the (4th record showing. Cir. and 2001). conclude Accordingly, We Smith we deny have has a independently not made the certificate of appealability and dismiss the appeal. Additionally, we construe Smith s notice of appeal and informal brief as an application to file a second or successive * The parties consented to have the case decided by magistrate judge in accordance with 28 U.S.C. § 636(c) (2006). 2 a petition under 28 U.S.C. § 2244 (2006). United Winestock, 340 F.3d 200, 208 (4th Cir. 2003). States v. In order to obtain authorization to file a successive § 2254 petition, a prisoner must assert claims based on either: constitutional law that was previously (1) a new rule of unavailable and made retroactive by the Supreme Court to cases on collateral review; or (2) newly discovered evidence that was not previously discoverable by due diligence and 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. (2006). 28 U.S.C. § 2244(b)(2) Smith s claims do not satisfy either of these 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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