UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6646
ALVIN LEE GREGORY,
Petitioner - Appellant,
versus
MICHAEL V. COLEMAN, Acting Warden, Mount Olive
Correctional Complex,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (5:02-cv-00472)
Submitted: January 31, 2007 Decided: February 20, 2007
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Alvin Lee Gregory, Appellant Pro Se. Heather A. Connolly, OFFICE
OF THE ATTORNEY GENERAL, Charleston, West Virginia; Charles Patrick
Houdyschell, Jr., WEST VIRGINIA DIVISION OF CORRECTIONS,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alvin Lee Gregory seeks to appeal the district court’s
order construing his petition filed pursuant to 28 U.S.C. § 2241
(2000) as a 28 U.S.C. § 2254 (2000) petition and dismissing it as
untimely, and the court’s orders denying reconsideration. The
orders are 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, although the
district court’s procedural ruling is debatable,* Gregory has not
demonstrated that the court’s assessment of the constitutional
*
Compare, e.g., White v. Lambert, 370 F.3d 1002, 1005 (9th
Cir. 2004) (“adopt[ing] majority view that 28 U.S.C. § 2254 is the
exclusive vehicle for a habeas petition by a state prisoner in
custody pursuant to a state court judgment, even when the
petitioner is not challenging his underlying state court
conviction”), with Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir.
2002) (approving of inmates proceeding under § 2241 to challenge
execution of state court sentence).
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claim is debatable or wrong. 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
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