United States v. Murph

111 F. App'x 672

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 27, 2004
• Docket: 03-6704
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6704

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PHILIP MURPH, a/k/a Phillip Murph, a/k/a Philip Murphy, a/k/a Phil,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (CR-94-36-BR)

Submitted: August 30, 2004 Decided: October 27, 2004

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Philip Murph, Appellant Pro Se. Robert Edward Skiver, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Philip Murph seeks to appeal the district court’s order

denying relief on his motion to reconsider under Fed. R. Civ. P.

60(b), filed in his underlying 28 U.S.C. § 2255 (2000) action. 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, 368-69 (4th Cir. 2004) (holding

that appeal from the denial of a Fed. R. Civ. P. 60(b) motion in a

habeas action requires a certificate of appealablity). 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, 336-38 (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 Murph has not made the requisite showing.

To the extent Murph’s notice of appeal and informal brief

could be construed as a motion for authorization to file a

successive § 2255 motion, we deny such authorization. United

States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied,

124 S. Ct. 496 (2003). Accordingly, we deny a certificate of

- 2 - 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

- 3 -