Robert Foster v. Warden of Livesay Correctional Institution

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 7, 2024
• Docket: 23-6143
• Status: Unpublished

Opinion

USCA4 Appeal: 23-6143 Doc: 7 Filed: 03/07/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6143

ROBERT L. FOSTER,

Petitioner - Appellant,

v.

WARDEN OF LIVESAY CORRECTIONAL INSTITUTION,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Beaufort. Timothy M. Cain, District Judge. (9:21-cv-03332-TMC)

Submitted: January 18, 2024 Decided: March 7, 2024

Before WILKINSON, AGEE, and QUATTLEBAUM, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Robert Lee Foster, Appellant Pro Se.

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PER CURIAM:

Robert Lee Foster seeks to appeal the district court’s order accepting the

recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2254 petition as

an unauthorized, successive § 2254 petition. He also appeals the district court’s subsequent

order construing his motion for release from custody as an unauthorized, successive habeas

petition and dismissing it on that basis. * We dismiss the appeal in part and affirm in part.

The order dismissing Foster’s § 2254 petition is not appealable unless a circuit

justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Jones

v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004). A certificate of appealability will not issue

absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When, as here, 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. Gonzalez v.

Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Foster has not made

the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the

appeal as to the district court’s order dismissing Foster’s § 2254 petition as successive. As

for the order dismissing Foster’s subsequent motion for release from custody, we have

* A certificate of appealability is not required to appeal the district court’s order dismissing the motion for release from custody as an unauthorized, successive habeas petition. See Harbison v. Bell, 556 U.S. 180, 183 (2009); Bixby v. Stirling, __ F.4th __, 2024 WL 85060, at *13 (4th Cir. Jan. 5, 2024); United States v. Williams, 56 F.4th 366, 370 n.3 (4th Cir. 2023); United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).

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reviewed the record and conclude that the district court properly construed the motion as a

successive habeas petition over which it lacked jurisdiction because Foster failed to obtain

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

at 397-400. Accordingly, we affirm the district court’s order dismissing the motion.

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 IN PART, AFFIRMED IN PART