UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7894
MARION EDWARD PEARSON, JR.,
Petitioner - Appellant,
v.
THEODIS BECK,
Respondent – Appellee,
and
RANDALL LEE,
Respondent.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:06-cv-00069-GCM)
Submitted: March 5, 2010 Decided: March 23, 2010
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marion Edward Pearson, Jr., Appellant Pro Se. Mary Carla
Hollis, Assistant Attorney General, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marion Edward Pearson, Jr., seeks to appeal the
district court’s orders denying his motions filed pursuant to
Fed. R. Civ. P. 60(b) and Fed. R. Civ. P. 59(e). The 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). 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 Pearson has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Pearson’s notice of appeal
and informal brief as an application to file a second or
successive petition under 28 U.S.C. § 2254 (2006). United
States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In
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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). Pearson’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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