Raymond Carter, Jr. v. Warden Perry Correctional

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6568
RAYMOND L. CARTER, JR., a/k/a Raymond Lewis Carter, Jr.,
Petitioner – Appellant,
v.
WARDEN OF PERRY CORRECTIONAL INSTITUTION,
Respondent – Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Joseph F. Anderson, Jr., District
Judge. (4:10-cv-03167-JFA)
Submitted: September 13, 2011 Decided: September 15, 2011
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Raymond L. Carter, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond L. Carter, Jr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge, treating his Fed. R. Civ. P. 60(b) motion as a successive
28 U.S.C. § 2254 (2006) petition, and dismissing it on that
basis. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A) (2006); 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) (2006). 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 Carter has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
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Additionally, we construe Carter’s notice of appeal
and informal brief as an application to file a second or
successive § 2254 petition. 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) (2006). Carter’s 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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