United States v. Wilkerson

163 F. App'x 241

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7541

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

MELVIN B. WILKERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CA-02-217; CA-05-417-2)

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

Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Melvin B. Wilkerson, Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Melvin B. Wilkerson seeks to appeal the district court’s

order denying as untimely his motion filed 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

the district court’s assessment of his constitutional claims is

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, 336-38 (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

Wilkerson has not made the requisite showing. We note that

Wilkerson’s claim under United States v. Booker, 543 U.S. 220

(2005), fails. See United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005) (holding that Booker is not retroactively applicable to

cases on collateral review). 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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