United States v. Simmons

101 F. App'x 920

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6506

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DON VINCENT SIMMONS,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (CR-98-601; CA-03-2279-2-23)

Submitted: June 24, 2004 Decided: July 1, 2004

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Don Vincent Simmons, Appellant Pro Se. Sean Kittrell, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Don Vincent Simmons seeks to appeal the district court’s

order denying relief on his motions filed under 28 U.S.C. § 2255

(2000) and Fed. R. Civ. P. 59(e). An appeal may not be taken from

the final order in a § 2255 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

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 Simmons 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

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