United States v. Beatty

104 F. App'x 293

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6648

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY LEE BEATTY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (CR-01-86; CA-04-17-7-F)

Submitted: July 29, 2004 Decided: August 5, 2004

Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Gary Lee Beatty, Appellant Pro Se. Paul Joseph McNulty, United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary Lee Beatty seeks to appeal the district court’s

order denying relief on his motion filed under 28 U.S.C. § 2255

(2000). An appeal may not be taken from the final order in a

§ 2255 proceeding 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 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683 (4th Cir. 2001). We have independently reviewed the

record and conclude that Beatty has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal. We deny Beatty’s motion for an enlargement of time to

amend his § 2255 motion to raise a claim under Blakely v.

Washington, ___ U.S. ___, 2004 WL 1402697 (U.S. June 24, 2004),

because Blakely does not apply in the § 2255 context. See

generally Teague v. Lane, 489 U.S. 288, 311 (1989); United

States v. Sanders, 247 F.3d 139, 148 (4th Cir. 2001). We dispense

with oral argument because the facts and legal contentions are

- 2 - adequately presented in the materials before the court and argument

would not aid the decisional process.

DISMISSED

- 3 -