United States v. Wagner

328 F. App'x 258

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6488

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THEODORE THOMAS WAGNER,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. G. Ross Anderson, Jr., Senior District Judge. (3:08-cv-03235-GRA)

Submitted: June 18, 2009 Decided: June 25, 2009

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Theodore Thomas Wagner, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Theodore Thomas Wagner seeks to appeal the district

court’s order accepting the recommendation of the magistrate

judge to dismiss the action without prejudice and dismissing his

28 U.S.C.A. § 2255 (West Supp. 2009) motion as successive.

Wagner also seeks to appeal the district court’s order denying

his subsequent Fed. R. Civ. P. 59(e) motion for reconsideration.

The orders are not appealable unless a circuit justice or judge

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)

(2006). 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 Wagner has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal. We also deny Wagner’s “petition for pre-enforcement

review.” We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

2 before the court and argument would not aid the decisional

process.

DISMISSED