United States v. Alphonse

141 F. App'x 133

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-6633

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLADEUR ALPHONSE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., District Judge. (CR-96-108; CA-04-1145)

Submitted: July 27, 2005 Decided: August 5, 2005

Before KING, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Willadeur Alphonse, Appellant Pro Se. Benjamin H. White, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Willadeur Alphonse, a federal prisoner, seeks to appeal

the district court’s order accepting the recommendation of the

magistrate judge and dismissing Alphonse’s motion filed pursuant to

Fed. R. Crim. P. 35(b)(2), which the court construed as a

successive motion under 28 U.S.C. § 2255 (2000), and concluded that

it lacked jurisdiction to consider. Alphonse also appeals from the

district court’s order denying his motion filed under Fed. R. Civ.

P. 59(e). The orders are 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

the district court’s assessment of his constitutional claims is

debatable or wrong and that any dispositive procedural rulings by

the district court are also debatable or wrong. See Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.

473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

We have independently reviewed the record and conclude that

Alphonse has not made the requisite showing. Accordingly, we deny

Alphonse’s motion to proceed in forma pauperis, deny a certificate

of appealability, and dismiss the appeal. We dispense with oral

argument because the facts and legal contentions are adequately

- 2 - presented in the materials before the court and argument would not

aid the decisional process.

DISMISSED

- 3 -