UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6544
MICHAEL MCEVILY,
Petitioner - Appellant,
versus
GENE M. JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (2:03-cv-00135-HCM)
Submitted: July 20, 2006 Decided: July 27, 2006
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Michael McEvily, Appellant Pro Se. Stephen R. McCullough, Assistant
Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael McEvily 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 McEvily has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe McEvily’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. 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).
McEvily’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
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