UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7522
VINCENT LEE FOREMAN,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CA-02-213-2)
Submitted: July 28, 2004 Decided: August 18, 2004
Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Vincent Lee Foreman, Appellant Pro Se. Robert H. Anderson, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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 (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 (2003).
Finally, in accordance with United States v. Winestock,
340 F.3d 200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003),
*
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.
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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
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