United States v. Tucker

203 F. App'x 522

Opinion

PER CURIAM:

Glenn Levi Tucker seeks to appeal the district court’s order construing his motion to correct his sentence under 18 U.S.C. § 8582 (2000) as a motion for relief under 28 U.S.C. § 2255 (2000). * The order is 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 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, 336-38,123 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, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Tucker 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.

* Because the district court failed to provide Tucker with notice that it was going to re-characterize his motion to correct his sentence as a motion under § 2255, "the motion cannot be considered to have become a § 2255 motion for purposes of applying to later motions the law’s 'second or successive’ restrictions.” Castro v. United States, 540 U.S. 375, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (quoting 28 U.S.C. § 2255, H 8).