Smith v. Governor , 285 F. App'x 997 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6078
BERNARD SMITH,
Petitioner - Appellant,
v.
GOVERNOR,
Respondent - Appellee.
______________
No. 08-6082
BERNARD SMITH,
Petitioner - Appellant,
v.
GOVERNOR; ASSISTANT UNITED STATES ATTORNEY GENERAL,
Respondents - Appellees.
Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:04-cv-03829-DKC; 8:04-cv-03955-DKC)
Submitted: May 1, 2008 Decided: August 8, 2008
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Bernard Smith, Appellant Pro Se. John Joseph Curran, Jr., Edward
John Kelley, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland; Steven Giles Hildenbrand, Assistant Attorney General,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
Bernard Smith seeks to appeal the district court’s orders
treating his Fed. R. Civ. P. 60(b) motion filed in two related
cases as a successive 28 U.S.C. § 2254 (2000) petition, and denying
the motion on that basis. 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 Smith has not
made the requisite showing. Accordingly, we deny a certificate of
appealability, deny leave to proceed in forma pauperis, and dismiss
the appeal.
Additionally, we construe Smith’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
- 3 -
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).
Smith’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
- 4 -