United States v. Holmes

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-7424



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


BENJAMIN NELSON HOLMES,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (4:01-cr-00121-CWH; 4:05-cv-02953-CWH)


Submitted:   February 28, 2008             Decided: March 6, 2008


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Benjamin Nelson Holmes, Appellant Pro Se. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Benjamin Nelson Holmes seeks to appeal the district

court’s order denying as moot several nondispositive motions filed

during the pendency of Holmes’ unsuccessful 28 U.S.C. § 2255 (2000)

motion.    The order is not appealable unless a circuit justice or

judge   issues   a   certificate     of    appealability.         See   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.       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 Holmes

has not made the requisite showing.           Accordingly, we deny Holmes’

motion for 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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