United States v. Capers

182 F. App'x 207

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 24, 2006
• Docket: 06-6186
• Status: Unpublished

Opinion

PER CURIAM:

John Anthony Capers 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that Capers has not made the requisite showing. Accordingly, we deny Capers’ 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

* To the extent Capers’ motion could be construed as a motion to recall the mandate, an appellate court has the inherent power to recall its mandate, but this power should only be exercised in extraordinary circumstances. Calderon v. Thompson, 523 U.S. 538, 549-50, 118 S.Ct 1489, 140 L.Ed.2d 728 (1998); Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.1977). Capers has not alleged such extraordinary circumstances.