UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEREK MARQUIS FLEMING,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-91-179; CR-91-78; CA-05-602-1)
Submitted: August 31, 2006 Decided: September 5, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Derek Marquis Fleming, Appellant Pro Se. Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Derek Marquis Fleming seeks to appeal the district
court’s order accepting the recommendation of the magistrate judge,
construing a motion for clarification of the criminal judgment as
a successive motion under 28 U.S.C. § 2255 (2000), and dismissing
it for lack of jurisdiction. 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 Fleming has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. We deny Fleming’s petition for writ of mandamus as moot
and 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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