Walter Timothy Gause v. Frank L. Perry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6608
WALTER TIMOTHY GAUSE,
Petitioner - Appellant,
v.
FRANK L. PERRY,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, District Judge. (3:16-cv-00631-FDW)
Submitted: June 29, 2021 Decided: July 2, 2021
Before HARRIS, RICHARDSON, and RUSHING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Walter Timothy Gause, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Walter Timothy Gause seeks to appeal the district court’s order denying his Fed. R.
Civ. P. 60 motion for relief from the court’s prior judgment denying relief on his 28 U.S.C.
§ 2254 petition. The order is not appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). 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). When the district court denies relief on the merits, a prisoner
satisfies this standard by demonstrating that reasonable jurists could find the district court’s
assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct.
759, 773-74 (2017). 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. Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Gause has not made
the requisite showing. The claims Gause raised in his Rule 60 motion challenged the
validity of his convictions, and, thus, the motion should have been construed as a
successive § 2254 petition. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); United
States v. McRae, 793 F.3d 392, 397-99 (4th Cir. 2015). Absent prefiling authorization
from this court, the district court lacked jurisdiction to entertain Gause’s successive § 2254
petition. See 28 U.S.C. § 2244(b)(3). Accordingly, we deny a certificate of appealability
and dismiss the appeal.

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We deny Gause’s omnibus motion for judicial notice, motion to appoint counsel,
and motion for leave to use original records. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED

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