United States v. Pearson , 156 F. App'x 589 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6443
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BERNICE PEARSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-02-19; CA-03-117-5)
Submitted: November 22, 2005 Decided: December 2, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Bernice Pearson, Appellant Pro Se. Robert H. McWilliams, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Bernice Pearson seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge
dismissing as untimely her 28 U.S.C. § 2255 (2000) motion, and
concluding that United States v. Booker, 125 S. Ct. 738 (2005) is
not retroactively applicable in § 2255 proceedings. This order is
not appealable unless a circuit justice or judge issues a
certificate of appealability. 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 the district
court’s assessment of her constitutional claims is debatable and
that any dispositive procedural findings by the district court are
also debatable or wrong. 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 (4th Cir. 2001). We have independently
reviewed the record and conclude that Pearson 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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