United States v. Wilkerson

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-6202



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,


          versus


ENOS A. WILKERSON,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:01-cr-355-RLW; 3:04-cv-00212-RLW)


Submitted: June 15, 2006                        Decided: June 20, 2006


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Enos A. Wilkerson, Appellant Pro Se. Peter Sinclair Duffey, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Enos A. Wilkerson seeks to appeal the district court’s

order denying relief on his 28 U.S.C. § 2255 (2000) 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 the constitutional claims by the district court is

debatable or wrong and that any dispositive procedural ruling by

the district court is likewise debatable.              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 Wilkerson has

not made the requisite showing.*           Accordingly, we deny Wilkerson’s

motion    for    appointment       of   counsel,     deny   a   certificate      of

appealability, and dismiss the appeal.                 We dispense with oral

argument because the facts and legal contentions are adequately



      *
      We decline to consider Wilkerson’s claims asserted for the
first time in this appeal. Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993). To the extent Wilkerson preserved his claim of
error under United States v. Booker, 543 U.S. 220 (2005), by
including it in a motion to amend below, he is not entitled to
relief because we have held that Booker is not retroactively
applicable to cases on collateral review. United States v. Morris,
429 F.3d 65, 72 (4th Cir. 2005).

                                        - 2 -
presented in the materials before the court and argument would not

aid the decisional process.



                                                        DISMISSED




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