UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7234
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALLEN EARL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-02-15; CA-04-155-H)
Submitted: January 19, 2006 Decided: January 25, 2006
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Allen Earl Smith, Appellant Pro Se. Steve R. Matheny, 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Unpublished opinions are not binding precedent in this circuit.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:
Allen Earl Smith seeks to appeal the district court’s
orders dismissing as untimely his 28 U.S.C. § 2255 (2000) motion
and denying reconsideration. The orders are 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 both that the district court’s assessment of the
constitutional claims is debatable or wrong and that any
dispositive procedural rulings by the district court are also
debatable or wrong. 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, 683-84 (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
*
We recently concluded that the rule announced in United
States v. Booker, 543 U.S. 220 (2005), is not retroactively
applicable to cases on collateral review. United States v. Morris,
429 F.3d 65, 72 (4th Cir. 2005).
- 2 -