United States v. McIlwaine

372 F. App'x 373

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7938

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ARTHUR TORRENCE MCILWAINE,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:05-cr-00391-FDW-1; 3:08-cv-00382-FDW)

Submitted: March 30, 2010 Decided: April 5, 2010

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Arthur Torrence McIlwaine, Appellant Pro Se. William A. Brafford, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Arthur Torrence McIlwaine seeks to appeal the district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West

Supp. 2009) motion. The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (2006). 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) (2006). 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 McIlwaine

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