United States v. Douglas

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-7085



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANTONIO GERARDO DOUGLAS,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-97-184; CA-94-971)


Submitted: November 17, 2005              Decided:   November 28, 2005


Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Antonio Gerardo Douglas, Appellant Pro Se.            William Neil
Hammerstrom, Jr., Gavin Alexander Corn, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Antonio G. Douglas seeks to appeal the district court’s

order dismissing as successive his 28 U.S.C. § 2255 (2000) motion.

An appeal may not be taken from the final order in a § 2255

proceeding 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 the district court’s assessment of his

constitutional   claims    is   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).      As Douglas notes, the present motion is not

successive because his prior § 2255 motion was dismissed without

prejudice.    See In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999).

However, because the claims in Douglas’ second § 2255 motion are

foreclosed by our decision in United States v. Morris, ___F.3d ___,

2005 WL 295 0732 (4th Cir. Nov. 7, 2005), Douglas has not made the

requisite showing under § 2253(c)(2).              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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