Filed: Apr. 27, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6075 COREY PERNELL MCNEIL, Petitioner - Appellant, v. LORETTA K. KELLY, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:10-cv-01400-TSE-TCB) Submitted: April 21, 2011 Decided: April 27, 2011 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Corey Pernell McNei
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6075 COREY PERNELL MCNEIL, Petitioner - Appellant, v. LORETTA K. KELLY, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:10-cv-01400-TSE-TCB) Submitted: April 21, 2011 Decided: April 27, 2011 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Corey Pernell McNeil..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6075
COREY PERNELL MCNEIL,
Petitioner - Appellant,
v.
LORETTA K. KELLY,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:10-cv-01400-TSE-TCB)
Submitted: April 21, 2011 Decided: April 27, 2011
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Corey Pernell McNeil, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Pernell McNeil seeks to appeal the district
court’s order dismissing his 28 U.S.C. § 2254 (2006) petition as
an unauthorized successive petition. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). 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 McNeil has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe McNeil’s notice of appeal
and informal brief as an application to file a second or
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successive § 2254 petition. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003); see Rice v. Rivera,
617 F.3d 802,
808 (4th Cir. 2010). 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). McNeil’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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