Carter v. Warden of Perry Correctional Institution

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6568

RAYMOND L. CARTER, JR., a/k/a Raymond Lewis Carter, Jr.,

Petitioner – Appellant,

WARDEN OF PERRY CORRECTIONAL INSTITUTION,

Respondent – Appellee,

and

STATE OF SOUTH CAROLINA,

Respondent.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Joseph F. Anderson, Jr., District
Judge. (4:10-cv-03167-JFA)

Submitted: September 13, 2011 Decided: September 15, 2011

Before AGEE, DAVIS, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Raymond L. Carter, Jr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Raymond L. Carter, Jr., seeks to appeal the district

court’s order accepting the recommendation of the magistrate

judge, 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)(A) (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 Carter has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

2
Additionally, we construe Carter’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). Carter’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