Ross v. Everett, No. 3:2010cv00713 - Document 21 (E.D. Va. 2011)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 9/27/11. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division STANLEY L. ROSS, Petitioner, v. Civil Action No. 3:10CV713 DAVID B. EVERETT, Respondent. MEMORANDUM OPINION Stanley L. Ross, a Virginia prisoner, brings this 28 U.S.C. § 2254 petition challenging his convictions in the Circuit Court for the City of Richmond for armed robbery, attempted armed robbery, possession of a sawed off shotgun in the commission of a robbery and possession of a firearm by a convicted felon ("the Richmond Convictions"). By Memorandum Opinion and Order entered on February 25, 2000, the Court denied a prior 28 U.S.C. § 2254 petition by Ross challenging these convictions. Ross v. Angelone, No. 3:99cv355 (E.D. Va. Feb. 25, 2000). The Antiterrorism and Effective Death Penalty Act of 1996 restricted the jurisdiction of the district courts to hear second or successive applications for federal habeas corpus relief by prisoners attacking the validity of their convictions and sentences by establishing a "'gatekeeping'mechanism." Felkerv. Turpin, 518 U.S. 651, 657 (1996). Specifically, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Because Ross has not obtained authorization from the United States Court of Appeals for the Fourth Circuit to file a successive § 2254 petition challenging the Richmond Convictions, this Court lacks jurisdiction to entertain the present § 2254 petition. Accordingly, the action will be DISMISSED FOR LACK OF JURISDICTION. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(l)(A). A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDanieU 529 U.S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). No law or evidence suggests that Petitioner is entitled to further consideration in this matter. A certificate of appealability will be DENIED. An appropriate Order shall issue. Date: Richmond, Virginia /s/ James R. Spencer Chief United States District Judge
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