UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-6292

LARRY KEITH EASTER,

Petitioner - Appellant,

versus

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. Henry Coke Morgan, Jr., District

Judge. (CA-00-242)

Submitted: June 18, 2004 Decided: August 19, 2004

Dismissed by unpublished per curiam opinion.

Before NIEMEYER, MICHAEL, and KING, Circuit Judges.

Larry Keith Easter, Appellant Pro Se. Richard Carson Vorhis, OFFICE

OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Larry Keith Easter appeals an order of the district court

dismissing for lack of jurisdiction Easter’s motion to set aside

judgment, which was characterized by the district court as a

successive 28 U.S.C. § 2254 (2000) petition.

Easter may not appeal from the denial of relief in a

§ 2254 proceeding unless a circuit justice or judge issues a

certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000).

Easter may satisfy this standard by demonstrating that reasonable

jurists would find both that his constitutional claims are

debatable and that any dispositive procedural rulings by the

district court are debatable or wrong. See Miller-El v. Cockrell,

537 U.S. 322 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683 (4th Cir.) (2001). We have reviewed

the record and determine that Easter’s motion to set aside judgment

is, in substance, a second petition attacking his conviction and

sentence under 28 U.S.C. § 2254 (2000). See United States v.

Winestock, 340 F.3d 200, 206 (4th Cir. 2003). We therefore treat

Easter’s notice of appeal and appellate brief as a request for

authorization from this court to file a second § 2254 petition.

See id. at 208. 

This court may authorize a second or successive § 2254

petition only if the applicant can show that his claims are based

on (1) a new rule of constitutional law, made retroactive to cases
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on collateral review by the Supreme Court, that was previously

unavailable; or (2) newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable

factfinder would have found him guilty of the offense. See 28

U.S.C. § 2244(b)(2). The applicant bears the burden of making a

prima facie showing of these requirements in his application. See

In re Fowlkes, 326 F.3d 542, 543 (4th Cir. 2003). In the absence

of pre-filing authorization, the district court is without

jurisdiction to entertain the successive petition. Evans v. Smith,

220 F.3d 306, 325 (4th Cir. 2000). 

After reviewing Easter’s motion and the record in this

matter, we conclude that it does not meet the applicable standard.

We therefore deny Easter’s request for a certificate of

appealability, deny Easter’s implied request for authorization to

file a second or successive § 2254 petition, and dismiss the

appeal. 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