United States v. Polk , 158 F. App'x 509 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6663
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN ISHMEAL POLK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-02-22; CA-03-264)
Submitted: December 22, 2005 Decided: December 29, 2005
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kevin Ishmeal Polk, Appellant Pro Se. Thomas Richard Ascik, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kevin Polk, a federal prisoner, seeks to appeal the
district court’s order denying relief on his 28 U.S.C. § 2255(2000) motion. An appeal may not be taken from the final order in
a habeas corpus proceeding 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 his constitutional claims is 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 Polk has not made the
requisite showing. On appeal, Polk challenges only his sentence
based on the holding in United States v. Booker, 543 U.S. 220(2005). This issue was raised for the first time on appeal and
this court has recently held that Booker is not retroactively
applicable to cases on collateral review. United States v. Morris,
2005 WL 2950732 (4th Cir. Nov. 7, 2005). Accordingly, we deny
Polk’s motion to proceed in forma pauperis and deny a certificate
of appealability and dismiss the appeal. We dispense with oral
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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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