United States v. Foster

185 F. App'x 225

Opinion

PER CURIAM:

In appeal No. 05-7550, Nathan Lee Foster seeks to challenge the district court’s order denying relief on his 28 U.S.C. § 2255 (2000) motion. In appeal No. 06-6487, he challenges the district court’s denial of his “Place Holder” motion, in which he sought sixty days to prepare a motion for collateral relief in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

With respect to Foster’s appeal of the denial of his § 2255 motion, the order is not appealable 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 any assessment of his constitutional claims by the district court 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, 336-38, 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, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Foster has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss appeal No. 05-7550.

With respect to appeal No. 06-6487, our decision in United States v. Morris, 429 F.3d 65 (2005), precludes Foster from preparing a motion that would rely on the retroactive application of Booker to his case on collateral review. We accordingly affirm the district court’s decision in appeal No. 06-6487. See United States v. Foster, 5:03-CR-319-01 (E.D.N.C. Mar. 3, 2006).

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.

No. 05-7550 DISMISSED.

No. 06-6187 AFFIRMED.