Antonio Winslow v. Harold Clarke, No. 12-7693 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7693 ANTONIO WINSLOW, a/k/a Troy Winslow, Petitioner - Appellant, v. HAROLD CLARKE, Corrections, Director of the Virginia Department of Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:12-cv-00484-RAJ-TEM) Submitted: December 20, 2012 Decided: December 27, 2012 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Antonio Douglas Winslow, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio Winslow seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. basis. judge § 2254 (2006) petition, and dismissing it on that The order is not appealable unless a circuit justice or issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (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 court s debatable or assessment wrong. Slack of the constitutional v. McDaniel, 529 U.S. claims 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 484-85. We have independently reviewed the record and conclude that Winslow has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. 2 Additionally, we construe Winslow 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. Winslow 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 this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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