Davis v. Warden, Lieber Correctional Institution , 268 F. App'x 259 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6076
CARNELL DAVIS,
Petitioner - Appellant,
v.
WARDEN, LIEBER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Henry M. Herlong, Jr., District
Judge. (9:07-cv-03318-HMH)
Submitted: March 27, 2008 Decided: April 4, 2008
Before TRAXLER* and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
*
Judge Traxler did not participate in consideration of this
case. The opinion is filed by a quorum of the panel pursuant to 28
U.S.C. § 46(d).
Carnell Davis, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Carnell Davis seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his 28 U.S.C. § 2254 (2000) petition for failure to
exhaust state court remedies. Our review of Davis’ petition
reveals that it merely repeats arguments he presented in a prior
petition under § 2254. Davis’ petition is, therefore, a successive
petition to vacate or modify sentence under § 2254 for which Davis
has not received authorization under 28 U.S.C. § 2244 (2000). See
United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003).
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. See 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 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. See 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 Davis
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has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
To the extent Davis’ notice of appeal and informal brief
could be construed as a motion for authorization to file a
successive § 2254 petition, we deny such authorization because he
has not shown he would benefit from newly discovered evidence or
retroactive application of a new rule of constitutional law. See
Winestock, 340 F.3d at 208. We also deny Davis’ motion for an en
banc hearing. 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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