United States v. Byrd

178 F. App'x 193

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7798

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSEPH BYRD, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., District Judge. (CR-98-998; CA-05-2784-7)

Submitted: April 20, 2006 Decided: April 25, 2006

Before MICHAEL, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Joseph Byrd, Jr., Appellant Pro Se. Isaac Louis Johnson, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Joseph Byrd, Jr., seeks to appeal the district court’s

order denying as successive his 28 U.S.C. § 2255 (2000) motion. 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 the district court’s assessment of his

constitutional claims is debatable or wrong and that any

dispositive procedural ruling by the district court is likewise

debatable. 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 Byrd 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

- 2 -