United States v. Gadsen , 355 F. App'x 738 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7080
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT JAMES GADSEN, a/k/a Axe-Head, a/k/a Robert James,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:97-cr-00274-PMD-1)
Submitted: November 10, 2009 Decided: December 10, 2009
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert James Gadsen, Appellant Pro Se. Sean Kittrell, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert James Gadsen seeks to appeal the district
court’s order treating his petition for a writ of error audita
querela as a successive 28 U.S.C.A. § 2255 (West Supp. 2009)
motion, and dismissing it on that basis. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);
Jones v. Braxton, 392 F.3d 683, 687 (4th Cir. 2004); 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)
(2006). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. 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 Gadsen 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
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materials before the court and argument would not aid the
decisional process.
DISMISSED
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