UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6279
SHERMAN ELWOOD SKIPPER,
Petitioner - Appellant,
versus
JENNIFER H. LANGLEY,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (5:05-hc-00749-H)
Submitted: August 31, 2006 Decided: September 19, 2006
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Sherman Elwood Skipper, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sherman Elwood Skipper seeks to appeal the district
court’s order treating his 28 U.S.C. § 2254 petition as successive
and dismissing it on that basis. The district court also denied
Skipper’s motion for reconsideration and his request for a
certificate of appealability. These orders are not appealable
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 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 Skipper has not made the requisite
showing.*
*
Construing Skipper’s notice of appeal and informal brief as
an application to file a second or successive petition under 28
U.S.C. § 2254, that application fails. 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
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Accordingly, we deny a 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
for constitutional error, no reasonable factfinder would have found
the petitioner guilty of the offense. 28 U.S.C. § 2244(b)(2)
(2000). Skipper’s claims do not satisfy either of these criteria.
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