UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8402
MELVIN CORNNELL DODSON,
Petitioner – Appellant,
v.
DEPARTMENT OF CORRECTIONS,
Defendant – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (7:08-cv-00566-jlk-mfu)
Submitted: June 18, 2009 Decided: June 22, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Melvin Cornnell Dodson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin Cornnell Dodson seeks to appeal the district
court’s dismissal of his second 28 U.S.C. § 2254 (2006) petition
as successive because Dodson failed to obtain certification to
file a successive petition from this court. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). 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) (2006). 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 Dodson has not made the requisite showing.
Accordingly, we deny Dodson’s motion for a certificate of
appealability and dismiss the appeal.
Additionally, we construe Dodson’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
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obtain authorization to file a successive 28 U.S.C. § 2254
petition, the claims presented must not have been presented in a
prior petition and must be based on either: (1) “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable;”
or (2) newly discovered evidence, not previously discoverable
through the exercise of 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 applicant guilty of the underlying offense.” 28 U.S.C.
§ 2244(b)(1), (2) (2006). Dodson’s claim does not satisfy any
of the above criteria. Accordingly, we deny Dodson
authorization to file a successive 28 U.S.C. § 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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