Green v. Warden, Wallens Ridge State Prison

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-6851 GEORGE SAMUEL GREEN, JR., Petitioner - Appellant, versus WARDEN, WALLENS RIDGE STATE PRISON, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CA-03-326-2) Submitted: August 30, 2004 Decided: September 14, 2004 Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. George Samuel Green, Jr., Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: George Samuel Green, Jr., seeks to appeal the district court’s order dismissing without prejudice his successive petition filed under 28 U.S.C. § 2254 (2000), for lack of jurisdiction.* An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Green has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. To the extent that Green’s notice of appeal and appellate brief could be construed as a motion for authorization to file a successive § 2254 * By order filed January 6, 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. - 2 - motion, we deny authorization. See United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003), cert. denied, ___ U.S. ___, 2003 WL 22232622 (U.S. Nov. 3, 2003) (No. 03-6548). 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 - 3 -