UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6860
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH DWAYNE LOCKLEAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:96-cr-00044-BR-1)
Submitted: August 31, 2006 Decided: September 8, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenneth Dwayne Locklear, Appellant Pro Se. Frank DeArmon Whitney,
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenneth Dwayne Locklear seeks to appeal the district
court’s order construing his “place holder motion” as a 28 U.S.C.
§ 2255 (2000) motion and denying relief. 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 Locklear has not made the requisite
showing.* Accordingly, we deny a certificate of appealability and
*
To the extent Locklear’s motion could have been construed as
a petition under 28 U.S.C. § 2241 (2000), relief would not be
warranted because the decision in United States v. Booker, 543 U.S.
220 (2005), is not retroactively applicable on collateral review.
See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).
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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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