United States v. Zellner

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-6835 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ANTHONY EDWARD ZELLNER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (CR-99-164; CA-01-311-2) Submitted: June 23, 2004 Decided: July 9, 2004 Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Anthony Edward Zellner, Appellant Pro Se. Laura P. Tayman, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Anthony Edward Zellner seeks to appeal the district court’s denial of his Fed. R. Civ. P. 60(b) motion to reconsider judgment. An appeal may not be taken from the final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). The denial of a Rule 60(b) motion is the final order in a habeas proceeding and thus requires a certificate of appealability for appeal. Reid v. Angelone, F.3d , , 2004 WL 1119646, at *4 (4th Cir. May 19, 2004) (No. 03-6146). 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). We have independently reviewed the record and conclude that Zellner 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. - 2 - DISMISSED - 3 -