Childress v. United States District Court

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-6434

JOSEPH L. CHILDRESS,

Petitioner - Appellant,

versus

UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA, Alexandria Division,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cv-01310-GBL)

Submitted: May 16, 2006 Decided: May 24, 2006

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Joseph L. Childress, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Joseph L. Childress seeks to appeal the district court’s

order treating his Fed. R. Civ. P. 60(b) motion as a successive 28

U.S.C. § 2254 (2000) petition, and dismissing it 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) (2000). 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 (2003); Slack v. McDaniel, 529 U.S. 473, 484

(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have

independently reviewed the record and conclude that Childress has

not made the requisite showing. Accordingly, we deny a certificate

of appealability and dismiss the appeal.

Additionally, we construe Childress’ 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. 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

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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) (2000).

Childress’ 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

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