UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6726
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHERRELL GARY BRINKLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-91-131; CA-02-301-3-2-MU)
Submitted: August 20, 2004 Decided: September 8, 2004
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Sherrell Gary Brinkley, Appellant Pro Se. Jennifer Marie Hoefling,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sherrell Gary Brinkley, a federal prisoner, seeks to
appeal the district court’s order denying his motion to reconsider
the denial of his Fed. R. Civ. P. 60(b) motion, in which Brinkley
sought the retroactive benefit of our holding in United States v.
Emmanuel, 288 F.3d 644 (4th Cir. 2002). We recently held that an
order denying Rule 60(b) relief in a habeas setting is “the final
order in a habeas corpus proceeding” subject to the certificate of
appealability requirement of 28 U.S.C. § 2253(c)(1) (2000).
Reid v. Angelone, 369 F.3d 363, 367-70 (4th Cir. 2004).
A certificate of appealability will not issue for claims
addressed by a district court 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 both that his constitutional claims are
debatable or wrong 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
Brinkley 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
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adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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