Flint Johnson, Jr. v. Frank Perry , 690 F. App'x 118 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6111
FLINT FITZGERALD JOHNSON, JR.,
Petitioner - Appellant,
v.
FRANK L. PERRY, Secretary N.C. Dept. of Public Safety,
Respondent - Appellee.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, District Judge. (1:16-cv-00244-TDS-JLW)
Submitted: May 19, 2017 Decided: May 26, 2017
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Flint Fitzgerald Johnson, Jr., Appellant Pro Se. Clarence Joe DelForge, III, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Peter Andrew Regulski, Assistant Attorney
General, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Flint Fitzgerald Johnson, Jr., seeks to appeal the district court’s order granting
Respondent’s motion to dismiss Johnson’s 28 U.S.C. § 2254 (2012) petition as
successive and unauthorized, and denying Johnson’s summary judgment motion. The
order is not appealable unless a circuit justice or judge issues a certificate of
appealability. See 28 U.S.C. § 2253(c)(1)(A) (2012); Jones v. Braxton, 392 F.3d 683,
688 (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) (2012). 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 Johnson has not
made the requisite showing. * Accordingly, we deny Johnson’s application to proceed in
*
The district court correctly found that Johnson had a prior § 2254 petition
dismissed with prejudice. See Johnson v. Keller, 1:10-cv-00373-TDS-WWD (M.D.N.C.,
PACER Nos. 12-13). Although we were unaware of the dismissal with prejudice when
we previously denied as unnecessary Johnson’s 28 U.S.C. § 2244 (2012) motion for
prefiling authorization to file a successive § 2254 petition, allowing Johnson to litigate
his habeas claims without § 2244 authorization “would subvert the purpose of the
[Antiterrorism and Effective Death Penalty Act]’s gatekeeping provisions: to restrict
(Continued)
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forma pauperis, deny a certificate of appealability, and dismiss the appeal. 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
habeas petitioners from taking multiple bites at the apple.” Dunn v. Singletary, 168 F.3d
440, 442 (11th Cir. 1999) (internal quotation marks omitted). Accordingly, Johnson must
first obtain this Court’s authorization to file a successive habeas petition in the district
court.
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