United States v. Cobb

103 F. App'x 795

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 6, 2004
• Docket: 03-7910
• Status: Unpublished

Opinion

PER CURIAM:

Thomas J. Cobb appeals from the district court’s dismissal of his petition filed under 28 U.S.C. § 2241 and construed by the district court as a motion under 28 U.S.C. § 2255 (2000). An appeal may not be taken to this court from the final order in a habeas proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004). 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 jurists of reason 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 reviewed the record and conclude that Cobb has not made the requisite showing. We therefore 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

* The district court construed Cobb’s 28 U.S.C. § 2241 (2000) petition as a motion to vacate under 28 U.S.C. § 2255, and dismissed it as a successive motion lacking the authorization required ' by § 2255. Having construed Cobb's notice of appeal and informal brief as a motion for authorization to file a successive habeas petition, see United States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied,U.S. -, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003), we conclude that Cobb is not entitled to such authorization under the strictures of § 2255.