Anthony Kelly v. South Carolina Department of C, No. 10-6465 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6465 ANTHONY TYRONE KELLY, a/k/a Anthony T. Kelley, Petitioner - Appellant, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; COLIE L. RUSHTON, Warden of McCormick Correctional Institution; HENRY MCMASTER, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Anderson. Terry L. Wooten, District Judge. (8:05-cv-00454-TLW) Submitted: June 1, 2010 Decided: June 9, 2010 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Anthony Tyrone Kelly, Appellant Pro Se. Samuel Creighton Waters, Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anthony Tyrone Kelly seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as an unauthorized successive 28 U.S.C. § 2254 (2006) petition, and dismissing it on that basis. a circuit justice appealability. 369 F.3d or The order is not appealable unless judge issues a certificate of 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district 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. We have independently reviewed the Slack, 529 U.S. at 484-85. record Kelly has not made the requisite showing. and conclude Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 that Additionally, we construe Kelly s notice of appeal 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) previously discoverable newly by due discovered diligence, evidence, that not 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) (2006). these criteria. would 28 U.S.C. Kelly 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 the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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