UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EARL ADOLPHUS ALLEYNE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-02-150; CA-04-760-2)
Submitted: January 9, 2006 Decided: January 23, 2006
Before WILLIAMS, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Earl Adolphus Alleyne, Appellant Pro Se. Kevin Michael Comstock,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Earl Adolphus Alleyne seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2255 (2000) motion.
An appeal may not be taken from the final order in a 28 U.S.C.
§ 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). For the reasons that
follow, we deny a certificate of appealability and dismiss
Alleyne’s appeal.
Alleyne argues that his Fifth and Sixth Amendment rights
were denied because his sentence was enhanced pursuant to the
career offender provision of the U.S. Sentencing Guidelines Manual
§ 4B1.1 (2003). Alleyne did not raise the issue on direct appeal.
The issue is therefore procedurally defaulted unless his § 2255
motion demonstrates cause for and actual prejudice from the
default, or actual innocence. United States v. Harris, 183 F.3d
- 2 -
313, 317 (4th Cir. 1999). We agree with the district court that
Alleyne has not made the requisite showing. Moreover, to the
extent Alleyne seeks retroactive application of the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), such a
claim is foreclosed by our decision in United States v. Morris, 429
F.3d 65 (4th Cir. 2005). 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
- 3 -