                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-8193


DWAYNE L. JOHNSON,

                  Petitioner - Appellant,

             v.

VIRGINIA DEPARTMENT OF CORRECTIONS, Director,

                  Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:07-cv-358)


Submitted:    July 30, 2009                  Decided:   August 3, 2009


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Dwayne L. Johnson, Appellant Pro Se.        Leah A. Darron, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA,           Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Dwayne L. Johnson seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

denying relief on his 28 U.S.C. § 2254 (2006) 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).           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   Johnson       has     not    made      the       requisite    showing.

Accordingly, we deny a certificate of appealability, deny leave

to proceed in forma pauperis, and dismiss the appeal.

           Johnson         also    attached      to       his    informal       brief    a    28

U.S.C.   § 2244      (2006)       motion    to    file      a    successive       28    U.S.C.

§ 2254 petition.          To the extent Johnson was attempting to file a

§ 2244 application, it is premature as to the claims that are

the subject of his first § 2254 petition and are pending on

                                             2
appeal.    To the extent he is attempting to seek permission to

file new claims in a second § 2254 petition, his claims do not

satisfy the criteria to grant a § 2244 motion.                            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).                  Johnson’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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