United States v. Benjamin

137 F. App'x 574

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7960

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARLON STAFFORD BENJAMIN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (CR-01-125; CA-03-1017-1)

Submitted: June 23, 2005 Decided: June 28, 2005

Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Marlon Stafford Benjamin, Appellant Pro Se. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Marlon Stafford Benjamin seeks to appeal from the

district court’s order denying relief on his motion filed under 28

U.S.C. § 2255 (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

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

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

his motion for 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

- 2 -