Wynn v. Jenkins , 82 F. App'x 859 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OSBORNE WYNN, JR., 
Petitioner-Appellant,
v.
 No. 03-7177
JAMES L. JENKINS, JR., Chairman,
Virginia Parole Board,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-01-552)
Submitted: December 11, 2003
Decided: December 23, 2003
Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
Osborne Wynn, Jr., Appellant Pro Se. Richard Carson Vorhis,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-
mond, Virginia, for Appellee.
2 WYNN v. JENKINS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Osborne Wynn, Jr., seeks to appeal the district court’s order deny-
ing his motion to vacate the district court’s judgment under Fed. R.
Civ. P. 60(b). Wynn’s motion sought to reopen the judgment dismiss-
ing his first 28 U.S.C. § 2254 (2000) petition as untimely filed. As the
district court correctly determined, Wynn’s self-styled Motion under
Rule 60(b) is, in substance, a second habeas corpus petition attacking
his conviction and sentence under 28 U.S.C. § 2254 (2000). See
United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). In the
absence of pre-filing authorization, the district court was without
jurisdiction to entertain the petition. Evans v. Smith, 220 F.3d 306,
325 (4th Cir. 2000). Accordingly, we deny a certificate of appeala-
bility and dismiss the appeal of the district court’s order.
In accordance with Winestock, we also treat Wynn’s notice of
appeal and appellate brief as a request for authorization from this
court to file a second habeas corpus petition. See id. at 208. This court
may authorize a second or successive § 2254 petition only if the
applicant can show that his claims are based on (1) a new rule of con-
stitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or (2) newly discov-
ered evidence that, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evi-
dence that no reasonable fact finder would have found him guilty of
the offense. See 28 U.S.C. §§ 2244(b)(2), 2255. The applicant bears
the burden of making a prima facie showing of these requirements in
his application. See In re Fowlkes, 326 F.3d 542, 543 (4th Cir. 2003).
Wynn failed to make the requisite showing. Thus, we deny authoriza-
tion under § 2244.
We deny Wynn’s motion for leave to proceed in forma pauperis.
We dispense with oral argument because the facts and legal conten-
WYNN v. JENKINS 3
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED