Raymond Magazine v. Warden of Broad River CI, No. 13-6294 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6294 RAYMOND MAGAZINE, Petitioner - Appellant, v. WARDEN OF BROAD RIVER CORRECTIONAL INSTITUTION, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. Terry L. Wooten, Chief District Judge. (2:12-cv-03432-TLW) Submitted: May 23, 2013 Before MOTZ and Circuit Judge. AGEE, Decided: Circuit Judges, and May 29, 2013 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Raymond Magazine, Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Raymond Magazine seeks to appeal the district court s order accepting the recommendation of the magistrate judge, 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. The order is not appealable unless a circuit justice or 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). 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 Magazine has not made the requisite showing. 2 Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. Additionally, we construe Magazine 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. Magazine 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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