United States v. Witherspoon

308 F. App'x 703

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8484

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARVIN HAROLD WITHERSPOON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:04-cr-00005-RLV-DCK-1; 5:07-cv- 00021-RLV)

Submitted: January 15, 2009 Decided: January 26, 2009

Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Marvin Harold Witherspoon seeks to appeal the district

court’s order denying relief on his 28 U.S.C. § 2255 (2000)

motion. 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 (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 Witherspoon

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