Filed: Apr. 19, 2005
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-7896 SHERMAN LEON JONES, Petitioner - Appellant, versus GENE M. JOHNSON, Director of the Virginia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. Rebecca Beach Smith, District Judge. (CA-03-448-2) Submitted: April 14, 2005 Decided: April 19, 2005 Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges. Dismissed by unpublished p
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-7896 SHERMAN LEON JONES, Petitioner - Appellant, versus GENE M. JOHNSON, Director of the Virginia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. Rebecca Beach Smith, District Judge. (CA-03-448-2) Submitted: April 14, 2005 Decided: April 19, 2005 Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges. Dismissed by unpublished pe..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7896
SHERMAN LEON JONES,
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. Rebecca Beach Smith, District
Judge. (CA-03-448-2)
Submitted: April 14, 2005 Decided: April 19, 2005
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Sherman Leon Jones, Appellant Pro Se. Michael Thomas Judge, 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Unpublished opinions are not binding precedent in this circuit.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:
Sherman Leon Jones seeks to appeal the district court’s
order denying relief on his motion for relief from judgment filed
pursuant to Fed. R. Civ. P. 60(b). An appeal may not be taken from
the final order in a habeas corpus proceeding unless a circuit
justice or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); see Reid v. Angelone,
369 F.3d 363, 370 (4th
Cir. 2004) (holding the certificate of appealability requirement
applies to appeals of denials of motions under Fed. R. Civ. P.
60(b) in habeas proceedings). 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 rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell,
537 U.S. 322, 336
(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 Jones has not made the requisite
showing. Accordingly, we deny Jones’ motion for a certificate of
appealability and dismiss the appeal.
Additionally, we construe Jones’ notice of appeal and
informal brief on appeal as an application to file a second or
successive petition under 28 U.S.C. § 2254 (2000). See United
States v. Winestock,
340 F.3d 200, 208 (4th Cir.), cert. denied,
124 S. Ct. 496 (2003). In order to obtain authorization to file a
- 2 -
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 sufficient to
establish that no reasonable fact finder would have found the
movant guilty. 28 U.S.C. § 2244(b)(3)(C) (2000). Jones’ claims do
not satisfy either of these conditions. 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
- 3 -