United States v. Brinkley

105 F. App'x 531

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6726

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SHERRELL GARY BRINKLEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CR-91-131; CA-02-301-3-2-MU)

Submitted: August 20, 2004 Decided: September 8, 2004

Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Sherrell Gary Brinkley, Appellant Pro Se. Jennifer Marie Hoefling, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Sherrell Gary Brinkley, a federal prisoner, seeks to

appeal the district court’s order denying his motion to reconsider

the denial of his Fed. R. Civ. P. 60(b) motion, in which Brinkley

sought the retroactive benefit of our holding in United States v.

Emmanuel, 288 F.3d 644 (4th Cir. 2002). We recently held that an

order denying Rule 60(b) relief in a habeas setting is “the final

order in a habeas corpus proceeding” subject to the certificate of

appealability requirement of 28 U.S.C. § 2253(c)(1) (2000).

Reid v. Angelone, 369 F.3d 363, 367-70 (4th Cir. 2004).

A certificate of appealability will not issue for claims

addressed by a district court 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 both that his constitutional claims are

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 (4th Cir. 2001).

We have independently reviewed the record and conclude that

Brinkley 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

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

would not aid the decisional process.

DISMISSED

- 3 -