UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6131
LARRY KEITH EASTER,
Petitioner - Appellant,
v.
GENE M. JOHNSON, Director of the Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (2:00-cv-00242-HCM-FBS)
Submitted: April 16, 2008 Decided: May 1, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Larry Keith Easter, Appellant Pro Se. Richard Carson Vorhis,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Keith Easter seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion. Because the motion
directly attacked his parole revocation, the district court was
without jurisdiction to consider the motion, which was, in essence,
a successive and unauthorized 28 U.S.C. § 2254 (2000) petition.
See United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).
The district court’s 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 Easter has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Easter’s notice of appeal and
informal brief as an application to file a second or successive
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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).
Easter’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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