Samuel Ricardo Hatcher, Jr. v. Gene M. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6755
SAMUEL RICARDO HATCHER, JR.,
Petitioner – Appellant,
v.
GENE M. JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:12-cv-00270-HEH)
Submitted: August 13, 2012 Decided: August 16, 2012
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Samuel Ricardo Hatcher, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Samuel Ricardo Hatcher, Jr., seeks to appeal the
district court’s order treating his Fed. R. Civ. P. 60(b) motion
as a successive 28 U.S.C. § 2254 (2006) petition, and dismissing
it on that basis. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(A) (2006); 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) (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 Hatcher has not made the requisite showing. Accordingly,
we deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal.

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Additionally, we construe Hatcher’s notice of appeal
and informal brief as an application to file a second or
successive § 2254 petition. See 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) (2006). Hatcher’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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