Washington v. Davis

332 F. App'x 16

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 2, 2009
• Docket: 09-6523
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6523

ELVIS WASHINGTON,

Petitioner - Appellant,

v.

KEITH DAVIS, Warden of Deerfield Correctional Center,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:08-cv-01298-JCC-TCB)

Submitted: August 26, 2009 Decided: September 2, 2009

Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Elvis Washington, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Elvis Washington seeks to appeal the district court's

orders treating his Fed. R. Civ. P. 60(b) motion as a successive

28 U.S.C. § 2254 (2006) petition, and denying the motion on that

basis. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (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) (2006). A prisoner satisfies this

standard by demonstrating that reasonable jurists would find

that any assessment of the constitutional claims by the district

court is debatable or wrong and that any dispositive procedural

ruling by the district court is likewise debatable. Miller-El

v. Cockrell, 537 U.S. 322, 336-38, 123 S. Ct. 1029, 154 L. Ed.

2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct.

1595, 146 L. Ed. 2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-

84 (4th Cir. 2001). We have independently reviewed the record

and conclude that Washington has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

Additionally, we construe Washington's notice of

appeal and informal brief as an application to file a second or

successive petition under 28 U.S.C. § 2254. United States v.

2 Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to

obtain authorization to file a successive § 2254 petition, a

prisoner must assert claims based on either: (1) a new rule of

constitutional law, previously unavailable, made retroactive by

the Supreme Court to cases on collateral review; or (2) newly

discovered evidence, not previously discoverable by due

diligence, that would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the petitioner guilty of

the offense. 28 U.S.C. § 2244(b)(2) (2006). Washington's

claims do not satisfy either of these criteria. Therefore, we

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 the court and argument would not aid the decisional

process.

DISMISSED