UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6660
CHARLES JERALL SMITH,
Petitioner - Appellant,
v.
GENE M. JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:05-cv-00196-MHL)
Submitted: August 21, 2009 Decided: September 11, 2009
Before MOTZ, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Charles Jerall Smith, Appellant Pro Se. Karen Geneva Misbach,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Jerall Smith seeks to appeal the magistrate
judge’s order treating his Fed. R. Civ. P. 60(b) motion as a
successive 28 U.S.C. § 2254 (2006) 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) (2006); 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 the district court’s assessment of the constitutional
claims, and any dispositive procedural ruling, debatable or
wrong. 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, 683-85 (4th Cir. 2001). We have independently
reviewed the record and conclude Smith has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Smith’s notice of appeal and
informal brief as an application to file a second or successive
*
The parties consented to have the case decided by a
magistrate judge in accordance with 28 U.S.C. § 636(c) (2006).
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petition under 28 U.S.C. § 2244 (2006). 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 that was previously unavailable and made
retroactive by the Supreme Court to cases on collateral review;
or (2) newly discovered evidence that was not previously
discoverable by due diligence and 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). Smith’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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