UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7597
MICHAEL W. MILLER,
Petitioner – Appellant,
v.
GENE JOHNSON,
Respondent – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:10-cv-00430-gec-mfu)
Submitted: April 13, 2011 Decided: April 18, 2011
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael W. Miller, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael W. Miller seeks to appeal the district court’s
orders: (i) denying his pro se motions to the extent they sought
relief from any judgment, pursuant to Fed. R. Civ. P. 60(b); and
(ii) construing his motions as a successive 28 U.S.C. § 2254
(2006) petition and dismissing it as unauthorized. The district
court’s orders are 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 Miller has not made the requisite showing.
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Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Miller’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). Miller’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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