Antonio Robinson v. Gene Johnson, No. 10-6680 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6680 ANTONIO DESHAWN ROBINSON, Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director of the Virginia Department of Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:08-cv-00122-MSD-TEM) Submitted: July 22, 2010 Decided: August 3, 2010 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Antonio DeShawn Robinson, Appellant Pro Se. Gregory William Franklin, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio DeShawn Robinson seeks to appeal the district court 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district debatable court s or assessment wrong. Slack of the constitutional v. McDaniel, 529 claims U.S. is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at the 484-85. conclude that We have Robinson independently has not reviewed made the record requisite and showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Additionally, we construe Robinson s notice of appeal and informal brief as an application successive § 2254 petition. to file a second or 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 have found the petitioner guilty of the offense. § 2244(b)(2) (2006). these criteria. would 28 U.S.C. Robinson 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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