Flint Johnson, Jr. v. Frank Perry

690 F. App'x 118

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 26, 2017
• Docket: 17-6111
• Status: Unpublished

Opinion

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Flint Fitzgerald Johnson, Jr., seeks to appeal the district court’s order granting Respondent’s motion to dismiss Johnson’s 28 U.S.C. § 2254 (2012) petition as successive and unauthorized, and denying Johnson’s summary judgment motion. The order is not appealable unless a circuit justice or judge issues a certificate of ap-pealability. See 28 U.S.C. § 2253(c)(1)(A) (2012); Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004). A certificate of ap-pealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Johnson has not made the requisite showing. * Accordingly, we deny Johnson’s application to proceed in forma pauperis, deny a certificate of appealability, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED

* The district court correctly found that Johnson had a prior § 2254 petition dismissed with prejudice. See Johnson v. Keller, 1:10-cv-00373-TDS-WWD (M.D.N.C., PACER Nos. 12-13). Although we were unaware of the dismissal with prejudice when we previously denied as unnecessary Johnson’s 28 U.S.C. § 2244 (2012) motion for prefiling authorization to file a successive § 2254 petition, allowing Johnson to litigate his habeas claims without § 2244 authorization "would subvert the purpose of the [Antiterrorism and Effective Death Penalty Actj’s gatekeep-ing provisions: to restrict habeas petitioners from taking multiple bites at the apple.” Dunn v. Singletary, 168 F.3d 440, 442 (11th Cir. 1999) (internal quotation marks omitted). Accordingly, Johnson must first obtain this Court’s authorization to file a successive habeas petition in the district court.