UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7353
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STARKS FINCHER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:08-cr-01219-GRA-1; 7:11-cv-70010-GRA)
Submitted: April 23, 2012 Decided: May 2, 2012
Before KING, GREGORY, and AGEE, Circuit Judges.
Dismissed in part; affirmed as modified in part by unpublished
per curiam opinion.
Starks Fincher, Jr., Appellant Pro Se. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Starks Fincher, Jr., filed a 28 U.S.C. § 2255 (West
Supp. 2011) motion, raising four claims. The district court
denied relief on three claims. The court construed the fourth
claim, in which Fincher sought retroactive application of a
recent amendment to the United States Sentencing Guidelines, as
an 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of
sentence. The court denied that motion. Fincher now appeals.
With respect to the § 2255 claims, the district
court’s order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (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
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and conclude that Fincher has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
this portion of the appeal.
The district court denied relief on the § 3582(c)
motion because Amendment 748 to the U.S. Sentencing Guidelines
had not been declared retroactive at the time the court issued
its order. Amendment 750, the successor to Amendment 748,
became retroactive effective November 11, 2011. In light of
this development, and in order to give Fincher the ability to
raise his claim in a separate § 3582(c)(2) motion, this portion
of the district court’s order is modified to reflect that the
motion is dismissed without prejudice to Fincher’s right to file
another § 3582(c)(2) motion. With this modification, we affirm
the decision of the district court.
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 IN PART;
AFFIRMED AS MODIFIED IN PART
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