Vernon Ripley v. Angelone, 369 F.3d 363, 369 4th Cir. 2004 . A certificate of appealability will not…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7103
VERNON RIPLEY,
Petitioner - Appellant,
versus
DAVID ROBINSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-04-280-1-GBL)
Submitted: January 31, 2007 Decided: February 28, 2007
Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Vernon Ripley, Appellant Pro Se. Amy L. Marshall, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Vernon Ripley seeks to appeal the district court’s order
denying relief on his motions filed under Rules 59(e) and 60(b) of
the Federal Rules of Civil Procedure, in his underlying 28 U.S.C.
§ 2254 (2000) petition. The court denied Ripley’s Rule 60(b)
motion on the grounds that it was a successive § 2254 petition.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000); 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) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Ripley has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Ripley’s notice of appeal and
informal brief as an application to file a second or successive
petition under 28 U.S.C. § 2254. United States v. Winestock, 340

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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) (2000).
Ripley’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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