Foreman v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6914
VINCENT LEE FOREMAN,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CA-02-213)
Submitted: February 10, 2006 Decided: February 28, 2006
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Vincent Lee Foreman, Appellant Pro Se. Robert H. Anderson, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Vincent Lee Foreman seeks to appeal the district court's
order denying his Fed. R. Civ. P. 60(b) motion and his motion to
amend his original petition filed under 28 U.S.C. § 2254 (2000).
The 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, 368-69, 374 n.7 (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 his
constitutional claims are debatable 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
(4th Cir. 2001). We have independently reviewed the record and
conclude that Foreman has not made the requisite showing. We
therefore deny a certificate of appealability and dismiss the
appeal.
Additionally, we construe Foreman's notice of appeal and
informal brief on appeal as an application to file a second or
successive habeas petition under 28 U.S.C. § 2254. See United
States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). Under 28
U.S.C. § 2244(b)(1) (2000), a motion for a second or successive
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habeas corpus petition may not be granted for any claim that was
presented in a prior application under § 2254. Because the claim
Foreman raises has already been rejected by the district court in
its ruling on his Fed. R. Civ. P. 59 motion, and by this court on
appeal, Foreman v. Johnson, 107 Fed. App’x 333 (4th Cir. 2004), he
fails to establish grounds for this court to authorize a successive
§ 2254 petition. Therefore, we decline to authorize 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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