UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7005
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLAUDE VANCE COOLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Graham C. Mullen,
Senior District Judge. (5:91-cr-00054-GCM-1; 5:09-cv-00049-GCM)
Submitted: August 31, 2009 Decided: September 24, 2009
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Claude Vance Cooley, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Claude Vance Cooley seeks to appeal the district
court’s order construing his “Independent Equitable Action” as a
successive 28 U.S.C.A. § 2255 (West Supp. 2009) motion, and
dismissing it on that basis. The order is not appealable unless
a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2006). 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)
(2006). 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 the district
court’s construction of Cooley’s action as a successive § 2255
motion is neither debatable nor wrong. Contrary to Cooley’s
argument on appeal, Castro v. United States, 540 U.S. 375
(2003), affords him no benefit as its requirement of notice
before a pleading is construed as a § 2255 motion applies only
to a pleading treated as the litigant’s first § 2255 motion.
Because Cooley had earlier pursued § 2255 relief, the pleading
2
recharacterized by the district court was not construed as
Cooley’s initial § 2255 motion. 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
3