United States v. Payne

167 F. App'x 972

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7906

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT LAWRENCE PAYNE,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CR-90-20-R; CA-05-698)

Submitted: February 16, 2006 Decided: February 23, 2006

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Robert Lawrence Payne, Appellant Pro Se. John Leslie Brownlee, United States Attorney, Thomas Jack Bondurant, Jr., Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Lawrence Payne seeks to appeal the district

court’s final order construing his Rule 60(b) motion as a

successive 28 U.S.C. § 2255 (2000) motion and dismissing it as

successive and without authorization from this court. The final

order is not appealable 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 Payne 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

- 2 -