Summary
construing appeal as a request for authorization to file a successive § 2254 petition and denying authorization
Summary of this case from Shumpert v. EagletonOpinion
No. 14-7227
10-22-2014
ROBERT DALE SMART, Petitioner - Appellant, v. SOUTH CAROLINA DEPARTMENT OF PROBATION PAROLE AND PARDON SERVICES, Respondent - Appellee, and SOUTH CAROLINA, STATE OF, Respondent.
Robert Dale Smart, Appellant Pro Se.
UNPUBLISHED Appeal from the United States District Court for the District of South Carolina, at Charleston. G. Ross Anderson, Jr., Senior District Judge. (2:13-cv-03621-GRA) Before MOTZ, WYNN and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Robert Dale Smart, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Robert Dale Smart seeks to appeal the district court's order accepting the recommendation of the magistrate judge, treating his motion filed under Federal Rules of Civil Procedure 59(e) and 60(b) and 28 U.S.C. § 2241 (2012) as a successive 28 U.S.C. § 2254 (2012) petition, and dismissing it as unauthorized. Smart also seeks to appeal the district court's order denying reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012); 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) (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 Smart has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Smart'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) (2012). Smart'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 this court and argument would not aid the decisional process.
DISMISSED