United States v. Gravette

80 F. App'x 868

Opinion

PER CURIAM.

Dismissed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.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

Armstead Gravette seeks to appeal the district court’s order accepting the report and recommendation of a magistrate judge and denying relief on his petition styled as a motion under Fed.R.Civ.P. 60(b), but properly construed by the district court as a motion under 28 U.S.C. § 2255 (2000). See United States v. Emmanuel, 288 F.3d 644, 649 (4th Cir.2002) (noting that a district court may construe a pleading as a § 2255 motion sua sponte when doing so will not deprive the movant of his right to file a timely, non-successive § 2255 motion). The order is appealable only if 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, 123 S.Ct. 1029, 1039, 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 Gravette 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