Thomas M. Tully v. GENE JOHNSON, Director, Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6362
THOMAS M. TULLY,
Petitioner - Appellant,
v.
GENE JOHNSON, Director, Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., Senior District Judge. (3:10-cv-00299-JAG-EWH)
Submitted: September 22, 2022 Decided: September 27, 2022
Before WILKINSON, DIAZ, and RUSHING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas M. Tully, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas M. Tully has noted an appeal from the district court’s order denying on the
merits his Fed. R. Civ. P. 60(b) 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)).
Tully’s motion challenged the validity of his convictions and 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). In the absence of
pre-filing authorization from this court, the district court lacked jurisdiction to entertain
* The district court denied relief on Tully’s prior § 2254 petition on the merits in
2011.

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Tully’s successive § 2254 petition. See 28 U.S.C. § 2244(b)(3). Accordingly, we deny a
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 this court and argument would not aid the
decisional process.
DISMISSED

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