United States v. Henry

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-7043

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALTON R. HENRY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-00-150; CA-01-528-2)

Submitted: November 22, 2005 Decided: December 6, 2005

Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Alton R. Henry, Appellant Pro Se. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Alton Henry, a federal prisoner, seeks to appeal the

district court’s order construing his 18 U.S.C. § 3553(a)(4)(A)

(2000) motion as a successive 28 U.S.C. § 2255 (2000) motion and

dismissing it for lack of jurisdiction. 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).

This standard is satisfied by demonstrating that reasonable jurists

would find the district court’s assessment of Henry’s

constitutional claims 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

Henry 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

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