Gary Wayne Hendricks v. Commonwealth of Virginia, No. 13-7992 (4th Cir. 2014)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7992 GARY WAYNE HENDRICKS, Petitioner - Appellant, v. COMMONWEALTH OF VIRGINIA, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:13-cv-00514-JCT-RSB) Submitted: February 27, 2014 Decided: March 5, 2014 Before NIEMEYER, KING, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Gary Wayne Hendricks, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gary Wayne Hendricks seeks to appeal the district court s order treating his motion for declaratory judgment as a successive 28 U.S.C. § 2254 (2012) 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) (2012); 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) (2012). 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 Hendricks 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 Hendricks 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) (2012). these criteria. would 28 U.S.C. Hendricks 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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
