Ballard v. Red Onion State Prison , 82 F. App'x 318 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7142
MARIO BALLARD,
Petitioner - Appellant,
versus
RED ONION STATE PRISON, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CA-03-388-3)
Submitted: November 21, 2003 Decided: December 8, 2003
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Mario Ballard, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mario Ballard seeks to appeal the district court’s order
dismissing without prejudice his successive petition filed under 28
U.S.C. § 2254 (2000), for lack of jurisdiction and the court’s
order denying Ballard’s Fed. R. Civ. P. 59(e) motion. An appeal
may not be taken from the final order in a § 2254 proceeding unless
a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2000). 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 his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed
the record and conclude that Ballard has not made the requisite
showing. To the extent that Ballard’s notice of appeal and
appellate brief could be construed as a motion for authorization to
file a successive § 2254 motion, we deny authorization. See United
States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003), cert.
denied, U.S. , 2003 WL 22232622 (U.S. Nov. 3, 2003) (No. 03-
6548).
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Accordingly, we deny a certificate of appealability, deny
leave to proceed in forma pauperis, and dismiss the appeal. 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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