United States v. Phillips

109 F. App'x 598

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 28, 2004
• Docket: 04-6383
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6383

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SAMUEL CLIVE PHILLIPS, a/k/a Jungle, a/k/a Culture, a/k/a David,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District Judge. (CR-93-131-2)

Submitted: July 23, 2004 Decided: September 28, 2004

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Samuel Clive Phillips, Appellant Pro Se. Kevin Michael Comstock, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Samuel Clive Phillips seeks to appeal the district

court’s order dismissing his motion for a sentence reduction as an

unauthorized, successive 28 U.S.C. § 2255 (2000) motion. An appeal

may not be taken from the final order in a habeas corpus 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 for claims addressed by a district

court 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 that Phillips has not made the requisite

showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal. We also deny Phillips’s motion to recall the

mandate and amend the appeal in light of the Supreme Court’s

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).* We

* The Supreme Court has not made Blakely retroactively applicable to cases on collateral review. See In re Dean, ___ F.3d ___, No. 04-13244 (11th Cir. July 9, 2004). Moreover, this court has concluded that Blakely does not impact the federal sentencing guidelines. See United States v. Hammoud, No. 03-4253 (4th Cir.

- 2 - 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

Aug. 2, 2004) (order), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Aug. 6, 2004) (No. 04-193).

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