United States v. Day

361 F. App'x 494

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7441

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID ALLEN DAY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (5:02-cr-30064-jct-mfu-1; 7:07-cv-00376-jct-mfu)

Submitted: January 14, 2010 Decided: January 21, 2010

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Allen Day, Appellant Pro Se. Craig Jon Jacobsen, I, Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

David Allen Day seeks to appeal the district court’s

order denying his Fed. R. Civ. P. 60(b) motion for

reconsideration of the district court’s order denying his

previous motion for reconsideration of the order denying relief

on his 28 U.S.C.A. § 2255 (West Supp. 2009) motion. The order

is not appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);

Reid v. Angelone, 369 F.3d 363, 369 (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) (2006). A prisoner satisfies this

standard by demonstrating that reasonable jurists would find

that any assessment of the constitutional claims by the district

court is debatable or wrong and that any dispositive procedural

ruling by the district court is likewise debatable.

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 Day 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

2 before the court and argument would not aid the decisional

process.

DISMISSED