Michau v. Taylor

103 F. App'x 770

Opinion

PER CURIAM:

Emory Alvin Michau, Jr., a state prisoner, seeks to appeal the district court’s order denying his motion to reconsider * the denial of relief on his petition filed under 28 U.S.C. § 2254 (2000). The 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 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 indepen dently reviewed the record and conclude that Michau 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

* Although the district court construed Michau’s post-judgment motion as being filed under Fed.R.Civ.P. 59(e), the motion was filed more than ten days after entry of the judgment denying his habeas corpus petition. Thus, the motion should have been construed as one under Fed.R.Civ.P. 60(b). See In re Burnley, 988 F.2d 1, 2 (4th Cir.1992) (distinguishing between Rule 59(e) and Rule 60(b) motions).