United States v. Thornton

94 F. App'x 148

Opinion

PER CURIAM:

Hazel Ann Thornton seeks to appeal the district court’s order denying relief on her motion filed under 28 U.S.C. § 2255 (2000) and denying her motion for reduction of sentence filed under Fed.R.Crim.P. 35.

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 her 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). As to the denial of § 2255 relief, we have independently reviewed the record and conclude that Thornton has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss her appeal of the court’s denial of her § 2255 motion.

We may remedy the government’s refusal to move for a reduction of sentence under Rule 35 only if the refusal is based on an unconstitutional motive, such as racial animus, or if the government acted in bad faith. See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). We conclude Thornton has not demonstrated the Government acted in bad faith in refusing to move under Rule 35, and we therefore affirm that aspect of the district court’s order.

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 IN PART; AFFIRMED IN PART