Foreman v. Johnson

107 F. App'x 333

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 18, 2004
• Docket: 03-7522
• Status: Unpublished

Opinion

PER CURIAM.

Vincent Lee Foreman seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and construing his motion under Federal Rule of Civil Procedure 59(e) as an unauthorized successive petition under 28 U.S.C. § 2254 (2000). * An appeal may not be taken from the final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). When, as here, a district court dismisses a § 2254 petition solely on procedural grounds, a certificate of appealability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right’ and (2) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’ ” Rose v. Lee, 252 F.3d 676, 684 (4th Cir.2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). We have independently reviewed the record and conclude that Foreman has not made the requisite showing. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

Finally, in accordance with United States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, — U.S.-, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003), we construe Foreman’s notice of appeal and informal brief as a motion for authorization under 28 U.S.C. § 2244 (2000) to file a successive habeas corpus petition. To obtain permission to bring a second or successive § 2254 petition, a movant must show that his claim: (1) “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or (2) relies on newly discovered facts that tend to establish the movant’s innocence. 28 U.S.C. § 2244. We conclude that Foreman has not satisfied either standard.

Accordingly, we deny Foreman’s implicit application for leave to file a successive § 2254 petition, deny Foreman’s motion for 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 the court and argument would not aid the decisional process.

DISMISSED

* By order filed April 5, 2004, this appeal was placed in abeyance for Jones v. Braxton, No. 03-6891. In view of our recent decision in Reid v. Angelone, 369 F.3d 363 (4th Cir.2004), we no longer find it necessary to hold this case in abeyance for Jones.