Thomas Davis v. Attorney General of Maryland , 546 F. App'x 318 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7222
THOMAS DAVIS, a/k/a Thomas Edwards,
Petitioner - Appellant,
v.
THE ATTORNEY GENERAL OF THE STATE OF MARYLAND; BOBBY
SHEARIN, Warden,
Respondents – Appellees
and
JOHN ROWLEY,
Respondent.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:08-cv-03453-AW)
Submitted: November 19, 2013 Decided: November 22, 2013
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Thomas Davis, Appellant Pro Se. Edward John Kelley, OFFICE OF
THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Davis seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion to vacate the
district court’s order denying relief on his 28 U.S.C. § 2254(2006) petition. Davis has unsuccessfully challenged his
conviction in a true § 2254 petition. Because Davis’s 60(b)
motion was a successive and unauthorized § 2254 petition, see In
re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997), the district court
was obligated to dismiss the motion, see United States v.
Winestock, 340 F.3d 200, 205 (4th Cir. 2003), and 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). 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
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claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85.
We have independently reviewed the record and conclude
that Davis has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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