United States v. Windsor

104 F. App'x 332

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6566

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANDREW WINDSOR, a/k/a Joseph Williams, a/k/a John Carlton Harris, a/k/a Andrew Wilson, a/k/a Darryl Thomas,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (CR-90-228-A)

Submitted: July 21, 2004 Decided: August 13, 2004

Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Andrew Windsor, Appellant Pro Se. Nash Whitney Schott, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Andrew Windsor, a federal prisoner, seeks to appeal the

district court’s order denying relief on his motion filed under 18

U.S.C. § 3582(c)(2) (2000), which the district court properly

construed as a motion under 28 U.S.C. § 2255 (2000). The district

court dismissed the motion as untimely. This 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 his 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 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.

Lee, 252 F.3d 676, 683 (4th Cir. 2001). The record demonstrates

that the district court lacked jurisdiction to consider the motion

as Windsor failed to obtain pre-filing authorization from this

court to file it. Windsor’s failure to obtain pre-filing

authorization to file the § 2255 motion in the first instance

precludes granting a certificate of appealability.

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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