UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6465
ANTHONY TYRONE KELLY, a/k/a Anthony T. Kelley,
Petitioner - Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; COLIE L. RUSHTON,
Warden of McCormick Correctional Institution; HENRY
MCMASTER,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Terry L. Wooten, District Judge.
(8:05-cv-00454-TLW)
Submitted: June 1, 2010 Decided: June 9, 2010
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Anthony Tyrone Kelly, Appellant Pro Se. Samuel Creighton
Waters, Assistant Attorney General, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Tyrone Kelly seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60(b) motion as an
unauthorized 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). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the petition states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Kelly has not made the requisite showing. Accordingly, we deny
a certificate of appealability and dismiss the appeal.
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Additionally, we construe Kelly’s notice of appeal and
informal brief as an application to file a second or successive
§ 2254 petition. 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) (2006). Kelly’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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