Johnnie Justice v. Harold Clarke

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 10, 2020
• Docket: 20-6131
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6131

JOHNNIE LEE JUSTICE,

Petitioner - Appellant,

v.

HAROLD W. CLARKE, Director, etc.,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:19-cv-00247-LMB-TCB)

Submitted: May 15, 2020 Decided: July 10, 2020

Before MOTZ, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Johnnie Lee Justice, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Johnnie Lee Justice appeals the district court’s order construing his motion,

purportedly filed under Fed. R. Civ. P. 60(b) or 28 U.S.C. § 1651 (2018), as a successive

28 U.S.C. § 2254 (2018) petition and dismissing the petition for lack of jurisdiction. ∗ Our

review of the record confirms that the district court properly construed Justice’s motion as

a successive § 2254 petition over which it lacked jurisdiction because he failed to obtain

prefiling authorization from this court. See 28 U.S.C. § 2244(b)(3)(A) (2018); McRae, 793

F.3d at 397-400. Accordingly, we affirm the district court’s order and deny as unnecessary

Justice’s motion for a certificate of appealability.

Consistent with our decision in United States v. Winestock, 340 F.3d 200, 208 (4th

Cir. 2003), we construe Justice’s notice of appeal and informal brief as an application to

file a second or successive § 2254 petition. Upon review, we conclude that Justice’s claims

do not meet the relevant standard. See 28 U.S.C. § 2244(b)(2) (2018). We therefore deny

authorization to file a successive § 2254 petition.

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.

AFFIRMED

∗ A certificate of appealability is not required to appeal the district court’s jurisdictional categorization of a Rule 60(b) motion as an unauthorized, successive habeas petition. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).