United States v. Lynch

144 F. App'x 345

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7116

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GEORGE LYNCH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CR-00-103; CA-05-464-1)

Submitted: September 27, 2005 Decided: October 4, 2005

Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

George Lynch, Appellant Pro Se. Morris Rudolph Parker, Jr., Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

George Lynch appeals a district court order dismissing

without prejudice his 28 U.S.C. § 2241 (2000) petition which the

court construed as a 28 U.S.C. § 2255 (2000) motion. To the extent

the court denied relief under § 2241, we have reviewed the record

and the district court’s memorandum opinion and order affirm for

the reasons cited by the district court. See United States v.

Lynch, Nos. CA-05-464-1, CR-00-103 (E.D. Va. filed June 7, 2005;

entered June 9, 2005). To the extent the court dismissed the

petition as a second or successive § 2255 motion, 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 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, 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 Lynch has not made the requisite showing.

Accordingly, we affirm the denial of relief under

§ 2241, deny Lynch’s motion for a certificate of appealability and

- 2 - dismiss the appeal from the denial of the § 2255 motion. 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.*

AFFIRMED IN PART; DISMISSED IN PART

* To the extent Lynch may be seeking authorization under 28 U.S.C. § 2244 (2000) to file a second and successive 28 U.S.C. § 2255 (2000) motion on the basis of the rules announced in United States v. Booker, 125 S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531 (2004), we deny authorization.

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