Lawrence v. Commonwealth of Virginia ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8168
MICHAEL ISIAH LAWRENCE,
Petitioner – Appellant,
v.
COMMONWEALTH OF VIRGINIA,
Respondent – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:09-cv-00459-jct-mfu)
Submitted: January 6, 2010 Decided: January 25, 2010
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Isiah Lawrence, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Isiah Lawrence seeks to appeal the district
court’s order treating his motion for post-conviction DNA
testing 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) (2006); Jones v. Braxton,
392 F.3d 683, 687 (4th Cir. 2004); 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 (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 Lawrence has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Additionally, we construe Lawrence’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.
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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). Lawrence’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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