Miles v. Angelone

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-6686

RONALD MILES,

Petitioner - Appellant,

versus

RONALD J. ANGELONE,

Respondent - Appellee.

No. 06-7028

RONALD MILES,

Petitioner - Appellant,

versus

RONALD J. ANGELONE,

Respondent - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (1:06-cv-00344-TSE)

Submitted: September 26, 2006 Decided: November 2, 2006
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Ronald Miles, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:

In these consolidated appeals, Ronald Miles seeks to

appeal the district court’s order treating his Fed. R. Civ. P.

60(b) motion as a successive 28 U.S.C. § 2254 (2000) petition, and

dismissing it on that basis, and subsequent orders denying his

motions for reconsideration. The orders are not appealable unless

a circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (2000); 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) (2000). 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 Miles has not

made the requisite showing. Accordingly, we grant Miles’s motion

to construe his motion to remand as a supplemental brief in case

No. 06-7028, deny his motion to remand in case No. 06-6686, deny

his motion for appointment of counsel, deny a certificate of

appealability, and dismiss the appeal.

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 Additionally, we construe Miles’s notice of appeal and

informal brief as an application to file a second or successive

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) (2000).

Miles’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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