UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-6680

ANTONIO DESHAWN ROBINSON,

Petitioner - Appellant,

v.

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. Mark S. Davis, District 

Judge. (2:08-cv-00122-MSD-TEM)

Submitted: July 22, 2010 Decided: August 3, 2010

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Antonio DeShawn Robinson, Appellant Pro Se. Gregory William 

Franklin, 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Unpublished opinions are not binding precedent in this circuit.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:

Antonio DeShawn Robinson 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) (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 Robinson has not made the requisite showing. 

Accordingly, we deny a certificate of appealability and dismiss 

the appeal.
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Additionally, we construe Robinson’s notice of appeal 

and informal brief as an application to file a second or 

successive § 2254 petition. 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). Robinson’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