Johnson v. Brooks , 114 F. App'x 581 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7014
JAMES LAMONT JOHNSON,
Petitioner - Appellant,
versus
JOSEPH M. BROOKS, Warden, FCI Petersburg,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-04-560)
Submitted: November 19, 2004 Decided: December 9, 2004
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
James Lamont Johnson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Lamont Johnson seeks to appeal from the district
court’s order construing his 28 U.S.C. § 2241 (2000) petition as a
28 U.S.C. § 2255 (2000) motion and transferring it to the Middle
District of North Carolina. Because Johnson’s claims attacking his
conviction do not fit within the savings clause of § 2255, we hold
that the district court properly found that Johnson’s motion could
only be considered under § 2255. Thus, the transfer 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 his or her constitutional claims are
debatable and that any dispositive procedural rulings by the
district court are also debatable or wrong. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (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 Johnson
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