UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6523
ELVIS WASHINGTON,
Petitioner - Appellant,
v.
KEITH DAVIS, Warden of Deerfield Correctional Center,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:08-cv-01298-JCC-TCB)
Submitted: August 26, 2009 Decided: September 2, 2009
Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Elvis Washington, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elvis Washington seeks to appeal the district court's
orders treating his Fed. R. Civ. P. 60(b) motion as a successive
28 U.S.C. § 2254 (2006) petition, and denying the motion 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) (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, 123 S. Ct. 1029, 154 L. Ed.
2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct.
1595, 146 L. Ed. 2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-
84 (4th Cir. 2001). We have independently reviewed the record
and conclude that Washington has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Washington'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.
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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) (2006). Washington'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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