UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHAN LEE FOSTER, a/k/a Plum,
Defendant - Appellant.
No. 06-6487
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHAN LEE FOSTER,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:03-CR-319-01; 5:05-CV-553-F)
Submitted: June 5, 2006 Decided: June 21, 2006
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
No. 05-7550 dismissed; No. 06-6487 affirmed by unpublished per
curiam opinion.
Nathan Lee Foster, Appellant Pro Se. Winnie Jordan Reaves,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In appeal No. 05-7550, Nathan Lee Foster seeks to
challenge the district court’s order denying relief on his 28
U.S.C. § 2255 (2000) motion. In appeal No. 06-6487, he challenges
the district court’s denial of his “Place Holder” motion, in which
he sought sixty days to prepare a motion for collateral relief in
light of United States v. Booker, 543 U.S. 220 (2005).
With respect to Foster’s appeal of the denial of his
§ 2255 motion, 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
any assessment of his constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See 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 Foster
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss appeal No. 05-7550.
With respect to appeal No. 06-6487, our decision in
United States v. Morris, 429 F.3d 65 (2005), precludes Foster from
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preparing a motion that would rely on the retroactive application
of Booker to his case on collateral review. We accordingly affirm
the district court’s decision in appeal No. 06-6487. See United
States v. Foster, 5:03-CR-319-01 (E.D.N.C. Mar. 3, 2006).
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.
No. 05-7550 DISMISSED
No. 06-6487 AFFIRMED
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