UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 

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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