UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7720
MARION LEON BEA,
Petitioner - Appellant,
v.
GENE JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:09-cv-00907-TSE-TCB)
Submitted: March 16, 2010 Decided: March 22, 2010
Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marion Leon Bea, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marion Leon Bea filed motions in the district court
challenging his Virginia state court convictions that he
characterized as seeking relief under Fed. R. Civ. P. 60(b). He
seeks to appeal the district court’s order treating his motions
collectively as a successive 28 U.S.C. § 2254 (2006) petition,
and denying relief 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 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 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Bea has not
made the requisite showing. Accordingly, we deny a certificate
of appealability and dismiss the appeal.
Additionally, we construe Bea’s notice of appeal and
informal brief as an application to file a second or successive
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petition under 28 U.S.C. § 2254. 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). Bea’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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