United States v. Smith

163 F. App'x 243

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 25, 2006
• Docket: 05-7234
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7234

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALLEN EARL SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Malcolm J. Howard, District Judge. (CR-02-15; CA-04-155-H)

Submitted: January 19, 2006 Decided: January 25, 2006

Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Allen Earl Smith, Appellant Pro Se. Steve R. Matheny, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Allen Earl Smith seeks to appeal the district court’s

orders dismissing as untimely his 28 U.S.C. § 2255 (2000) motion

and denying reconsideration. The orders are 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 both that the district court’s assessment of the

constitutional claims is debatable or wrong and that any

dispositive procedural rulings by the district court are also

debatable or wrong. 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 Smith 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

* We recently concluded that the rule announced in United States v. Booker, 543 U.S. 220 (2005), is not retroactively applicable to cases on collateral review. United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).

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