United States v. Phillips

352 F. App'x 821

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7106

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT EDWARD PHILLIPS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:03-cr-00103-HCM-TEM-1)

Submitted: November 17, 2009 Decided: November 23, 2009

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

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

Unpublished opinions are not binding precedent in this circuit.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

Robert Edward Phillips seeks to appeal the district

court’s order denying his Fed. R. Civ. P. 60(b) motion for

reconsideration of 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);

Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).

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 Phillips 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

2 materials before the court and argument would not aid the

decisional process.

DISMISSED