United States v. Zater ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7929
UNITED STATES OF AMERICA,
Respondent - Appellee,
versus
BRIAN PETER ZATER,
Petitioner - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Henry M. Herlong, Jr., District
Judge. (CA-04-22461)
Submitted: August 18, 2005 Decided: August 23, 2005
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Brian Peter Zater, Appellant Pro Se. Stacey Denise Haynes, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Brian Peter Zater seeks to appeal the district court’s
order construing his “Petition for Estoppel in Pais Through
Declaratory Injunctive Relief” as a 28 U.S.C. § 2255 (2000) motion
and dismissing it as successive. The order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2000); 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) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find both that the district court’s assessment of the
constitutional claims is debatable or wrong and that any
dispositive procedural rulings by the district court are also
debatable or wrong. 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 Zater 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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