UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-7522

VINCENT LEE FOREMAN,

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. Jerome B. Friedman, District

Judge. (CA-02-213-2)

Submitted: July 28, 2004 Decided: August 18, 2004

Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Vincent Lee Foreman, Appellant Pro Se. Robert H. Anderson, III,

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Unpublished opinions are not binding precedent in this circuit.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).
*By order filed April 5, 2004, this appeal was placed in

abeyance for Jones v. Braxton, No. 03-6891. In view of our recent

decision in Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004), we no

longer find it necessary to hold this case in abeyance for Jones.

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PER CURIAM:

Vincent Lee Foreman seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

construing his motion under Federal Rule of Civil Procedure 59(e)

as an unauthorized successive petition under 28 U.S.C. § 2254

(2000).* An appeal may not be taken from the final order in a

habeas corpus proceeding unless a circuit justice or judge issues

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

When, as here, a district court dismisses a § 2254 petition solely

on procedural grounds, a certificate of appealability will not

issue unless the petitioner can demonstrate both “(1) ‘that jurists

of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right’ and (2) ‘that

jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.’” Rose v. Lee, 252

F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)). We have independently reviewed the record and

conclude that Foreman has not made the requisite showing. See

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 

Finally, in accordance with United States v. Winestock,

340 F.3d 200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003),
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we construe Foreman’s notice of appeal and informal brief as a

motion for authorization under 28 U.S.C. § 2244 (2000) to file a

successive habeas corpus petition. To obtain permission to bring

a second or successive § 2254 petition, a movant must show that his

claim: (1) “relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable” or (2) relies on newly discovered

facts that tend to establish the movant’s innocence. 28 U.S.C.

§ 2244. We conclude that Foreman has not satisfied either

standard.

Accordingly, we deny Foreman’s implicit application for

leave to file a successive § 2254 petition, deny Foreman’s motion

for certificate of appealability, 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