Owens v. Padula , 272 F. App'x 265 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7461
MICHAEL OWENS,
Petitioner - Appellant,
versus
ANTHONY PADULA, Warden, Lee Correctional
Institution; JON OZMINT; HENRY MCMASTER,
Attorney General of the State of South
Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. G. Ross Anderson, Jr., District
Judge. (2:06-cv-00639-GRA)
Submitted: March 21, 2008 Decided: April 7, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Michael Owens, Appellant Pro Se. Derrick K. McFarland, SOUTH
CAROLINA BUDGET AND CONTROL BOARD, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Owens seeks to appeal the district court’s order
denying his Fed. R. Civ. P. 60(b) motion. Because that motion
directly attacked his conviction, the district court was without
jurisdiction to consider the motion, which was, in essence, a
successive and unauthorized 28 U.S.C. § 2254 (2000) petition. See
United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003)
The district court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000); 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) (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. 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 Owens has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Owens’ notice of appeal and
informal brief as an application to file a second or successive
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petition under 28 U.S.C. § 2254. 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) (2000).
Owens’ 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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