UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6495
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD HARDY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:95-cr-00156-LMB-2)
Submitted: July 29, 2010 Decided: September 8, 2010
Before KING, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Howard Hardy, Appellant Pro Se. Lawrence Joseph Leiser,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Hardy seeks to appeal the district court’s
order denying relief on his self-styled “Motion to Modify
Sentence Based Upon Fraud Upon the Court.” The district court
correctly recognized that Hardy has unsuccessfully challenged
his sentence enhancement numerous times, including at his
sentencing hearing, on his direct appeal, in a true 28 U.S.C.A.
§ 2255 (West Supp. 2010) motion, and in a 28 U.S.C. § 3582(c)
(2006) motion. Because Hardy’s motion was a successive and
unauthorized § 2255 motion, see 28 U.S.C. § 2255(h); In re Vial,
115 F.3d 1192, 1194 (4th Cir. 1997), the district court was
obligated to dismiss the motion, see United States v. Winestock,
340 F.3d 200, 205 (4th Cir. 2003), and the order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);
Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).
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). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
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When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the motion states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85. We have independently reviewed the record and
conclude that Hardy has not made the requisite showing.
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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