ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6009
PAUL D. BAKER,
Petitioner - Appellant,
versus
COMMONWEALTH OF VIRGINIA,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-04-456-7-JCT)
Submitted: December 20, 2006 Decided: January 25, 2007
Before KING, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Paul D. Baker, Appellant Pro Se. John H. McLees, Jr., OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul D. Baker 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 Baker has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
*
We previously dismissed Baker’s appeal because it was
untimely. Baker filed a petition for rehearing and rehearing en
banc, arguing he did not receive notice of the district court order
until 118 days after it was entered. The Commonwealth of Virginia
stated it had no objection if this court chose to accept the notice
of appeal as a motion to reopen and grant Baker’s rehearing
petition. We thereupon granted panel rehearing.
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Additionally, we construe Baker’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
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).
Baker’s claims do not satisfy either of these criteria. Therefore,
although we grant Baker’s motion to present newly discovered
evidence, we deny his motions for the appointment of counsel and an
evidentiary hearing, and 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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