United States v. Looker

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                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-7377


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FLOYD RAYMOND LOOKER, a/k/a Ray,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.  Frederick P. Stamp,
Jr., Senior District Judge.     (1:96-cr-00043-FPS-1; 1:99-cv-
00181-FPS)


Submitted:   March 14, 2011                 Decided:   April 8, 2011


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Floyd Raymond Looker, Appellant Pro Se.        David Earl Godwin,
Shawn   Angus   Morgan,   Assistant  United    States   Attorneys,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Floyd Raymond Looker, Jr. seeks to appeal the district

court’s order denying his motion to amend his previously denied

28 U.S.C.A. § 2255 (West Supp. 2010) motion.                          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).                     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).

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 Looker has not made the requisite showing.                                      A

district court may only grant a post-judgment motion to amend if

the court has vacated the underlying judgment pursuant to Fed.

R. Civ. P. 59(e) or 60(b).               Laber v. Harvey, 438 F.3d 404, 427-

48 (4th Cir. 2006) (en banc).                  Here, the district court did not

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vacate   the    underlying    judgment,       a   judgment    that   this    court

declined   to    overrule     on   appeal.          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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