Johnson v. Brooks

114 F. App'x 581

Opinion

PER CURIAM.

James Lamont Johnson seeks to appeal from the district court’s order construing his 28 U.S.C. § 2241 (2000) petition as a 28 U.S.C. § 2255 (2000) motion and transferring it to the Middle District of North Carolina. Because Johnson’s claims attacking his conviction do not fit within the savings clause of § 2255, we hold that the district court properly found that Johnson’s motion could only be considered under § 2255. Thus, the transfer order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his or her constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (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 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