United States v. Johnson

304 F. App'x 161

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7568

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRY KERMIT JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:98-cr-00289-RKV-6; 5:03-cv- 00049-RLV)

Submitted: December 11, 2008 Decided: December 18, 2008

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Terry Kermit Johnson, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Terry Kermit Johnson seeks to appeal the district

court’s order denying his motion to reopen under Fed. R. Civ. P.

60(b)(4). ∗ The order is not appealable unless a circuit justice

or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2000); 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) (2000). 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 Johnson 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

∗ The underlying Rule 60(b) motion is Johnson’s sixth post- judgment motion seeking reconsideration of the district court’s July 2006 order denying relief on his 28 U.S.C. § 2255 (2000) motion.

2 materials before the court and argument would not aid the

decisional process.

DISMISSED