United States v. Hardy

395 F. App'x 20

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 8, 2010
• Docket: 10-6495
• Status: Unpublished

Opinion

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Howard Hardy seeks to appeal the district court’s order denying relief on his self-styled “Motion to Modify Sentence Based Upon Fraud Upon the Court.” The district court correctly recognized that Hardy has unsuccessfully challenged his sentence enhancement numerous times, including at his sentencing hearing, on his direct appeal, in a true 28 U.S.C.A. § 2255 (West Supp.2010) motion, and in a 28 U.S.C. § 3582(c) (2006) motion. Because Hardy’s motion was a successive and unauthorized § 2255 motion, see 28 U.S.C. § 2255(h); In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997), the district court was obligated to dismiss the motion, see United States v. Winestock, 340 F.3d 200, 205 (4th Cir.2003), and 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(e)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Hardy 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.