Freddie Casey v. Buckingham Correctional Center, No. 12-8072 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-8072 FREDDIE EUGENE CASEY, Petitioner - Appellant, v. BUCKINGHAM CORRECTIONAL CENTER WARDEN, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James P. Jones, District Judge. (7:97-cv-00466-JPJ) Submitted: March 26, 2013 Decided: March 28, 2013 Before DUNCAN, FLOYD, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Freddie Eugene Casey, Appellant Pro Se. Kathleen Beatty Martin, Senior Assistant Attorney General, Richmond, Virginia; Lisa Rae McKeel, Assistant United States Attorney, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Freddie Eugene Casey 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)(A) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). issue absent a A certificate of appealability will not substantial constitutional right. showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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 assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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 Casey has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 2 Additionally, we construe Casey 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 previously discoverable (2) 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. Casey 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