Opinion
No. 08-6131.
Submitted: April 16, 2008.
Decided: May 1, 2008.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:00-cv-00242-HCM-FBS).
Larry Keith Easter, Appellant Pro Se. Richard Carson Vorhis, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Larry Keith Easter seeks to appeal the district court's order denying his Fed.R.Civ.P. 60(b) motion. Because the motion directly attacked his parole revocation, 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Easter has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Easter's notice of appeal and informal brief as an application to file a second or successive 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). Easter'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.