United States v. Hargrove

126 F. App'x 147

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7961

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES ALVIN HARGROVE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (CR-02-232; CA-04-145)

Submitted: March 30, 2005 Decided: April 21, 2005

Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James Alvin Hargrove, Appellant Pro Se. Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

James Alvin Hargrove filed in the district court a motion

for reconsideration of the district court’s order denying his 28

U.S.C. § 2255 (2000) motion. He seeks to appeal the district

court’s order construing the motion for reconsideration as a

successive § 2255 motion and transferring it to this court for

consideration under 28 U.S.C. § 2244 (2000). An appeal may not be

taken from the final order in a § 2255 proceeding 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

the district court’s assessment of his constitutional claims is

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 (2003); Slack v. McDaniel, 529 U.S.

473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).

We have independently reviewed the record and conclude that

Hargrove 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