Lee v. Clarke

Full title: JOHNNIE LEE JUSTICE, Petitioner - Appellant, v. HAROLD W. CLARKE…

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Jul 10, 2020

No. 20-6131 (4th Cir. Jul. 10, 2020)

Opinion

No. 20-6131

07-10-2020

JOHNNIE LEE JUSTICE, Petitioner - Appellant, v. HAROLD W. CLARKE, Director, etc., Respondent - Appellee.

Johnnie Lee Justice, Appellant Pro Se.

PER CURIAM

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:19-cv-00247-LMB-TCB) Before MOTZ, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Johnnie Lee Justice, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Johnnie Lee Justice appeals the district court's order construing his motion, purportedly filed under Fed. R. Civ. P. 60(b) or 28 U.S.C. § 1651 (2018), as a successive 28 U.S.C. § 2254 (2018) petition and dismissing the petition for lack of jurisdiction.^* Our review of the record confirms that the district court properly construed Justice's motion as a successive § 2254 petition over which it lacked jurisdiction because he failed to obtain prefiling authorization from this court. See 28 U.S.C. § 2244(b)(3)(A) (2018); McRae, 793 F.3d at 397-400. Accordingly, we affirm the district court's order and deny as unnecessary Justice's motion for a certificate of appealability.

* A certificate of appealability is not required to appeal the district court's jurisdictional categorization of a Rule 60(b) motion as an unauthorized, successive habeas petition. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015). --------

Consistent with our decision in United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003), we construe Justice's notice of appeal and informal brief as an application to file a second or successive § 2254 petition. Upon review, we conclude that Justice's claims do not meet the relevant standard. See 28 U.S.C. § 2244(b)(2) (2018). We therefore 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 this court and argument would not aid the decisional process.

AFFIRMED