UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6038
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELLIS JAMES SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-02-25-BO; CA-03-340-5-BO)
Submitted: May 12, 2004 Decided: October 21, 2004
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ellis James Smith, Appellant Pro Se. Felice McConnell Corpening,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ellis James Smith seeks to appeal the district court’s
order denying relief on 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
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 Smith 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
*
After submitting his informal brief, Smith filed a Fed. R.
App. P. 28(j) letter titled a “Motion to Amend/Supplement COA
Memorandum” asking this Court to consider his case in light of the
Supreme Court’s recent holding in Blakely v. Washington, 124 S. Ct.
2531 (2004). However, Blakely has not been held by the Supreme
Court to apply retroactively to cases on collateral review.
Accordingly, we decline Smith’s request to issue a certificate of
appealability based on the Blakely decision.
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