Freddie Casey v. Buckingham Correctional Center ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8072
FREDDIE EUGENE CASEY,
Petitioner - Appellant,
v.
BUCKINGHAM CORRECTIONAL CENTER WARDEN,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, District
Judge. (7:97-cv-00466-JPJ)
Submitted: March 26, 2013 Decided: March 28, 2013
Before DUNCAN, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Freddie Eugene Casey, Appellant Pro Se. Kathleen Beatty Martin,
Senior Assistant Attorney General, Richmond, Virginia; Lisa Rae
McKeel, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie Eugene Casey 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 (2006) petition, and dismissing it
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)(A) (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 claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Casey has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal.
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Additionally, we construe Casey’s notice of appeal and
informal brief as an application to file a second or successive
§ 2254 petition. 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) (2006). Casey’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 this court and argument would not aid the decisional
process.
DISMISSED
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