332 FAPPX 16 - Washington v. Davis

                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-6523


ELVIS WASHINGTON,

                  Petitioner - Appellant,

             v.

KEITH DAVIS, Warden of Deerfield Correctional Center,

                  Respondent - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:08-cv-01298-JCC-TCB)


Submitted:    August 26, 2009                 Decided: September 2, 2009


Before TRAXLER,     Chief   Judge,   and   GREGORY   and   SHEDD,   Circuit
Judges.


Dismissed by unpublished per curiam opinion.


Elvis Washington, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Elvis Washington seeks to appeal the district court's

orders treating his Fed. R. Civ. P. 60(b) motion as a successive

28 U.S.C. § 2254

 (2006) petition, and denying the motion 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) (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)     (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

123 S. Ct. 1029

154 L. Ed. 2d 931

 (2003); Slack v. McDaniel,

529 U.S. 473, 484

120 S. Ct. 1595

146 L. Ed. 2d 542

 (2000); Rose v. Lee,

252 F.3d 676

, 683-

84 (4th Cir. 2001).           We have independently reviewed the record

and conclude that Washington has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.

              Additionally,        we    construe       Washington'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.

                                           2
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).     Washington'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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