Michael Miller v. Gene Johnson, No. 10-7597 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7597 MICHAEL W. MILLER, Petitioner Appellant, v. GENE JOHNSON, Respondent Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Chief District Judge. (7:10-cv-00430-gec-mfu) Submitted: April 13, 2011 Decided: April 18, 2011 Before KING, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael W. Miller, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael W. Miller seeks to appeal the district court s orders: (i) denying his pro se motions to the extent they sought relief from any judgment, pursuant to Fed. R. Civ. P. 60(b); and (ii) construing his motions as a successive 28 U.S.C. § 2254 (2006) petition and dismissing it as unauthorized. The district court s orders are not appealable unless a circuit justice or 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 Miller independently has not 2 made reviewed the record requisite and showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, and informal successive brief § 2254 340 F.3d 200, we as construe an application petition. 208 (4th Miller s to United Cir. notice file States 2003). In a v. order of appeal second or Winestock, 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. 28 U.S.C. § 2244(b)(2) (2006). not either satisfy of these criteria. Miller s claims do 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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