United States v. Childress ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6728
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LITTLE TOM CHILDRESS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (CR-94-106; CA-00-937)
Submitted: July 29, 2004 Decided: August 5, 2004
Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Little Tom Childress, Appellant Pro Se. Ray B. Fitzgerald, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Little Tom Childress seeks to appeal the district court’s
orders denying his motion to reopen the appeal time to allow him to
appeal the denial of his motion filed under 28 U.S.C. § 2255(2000). An appeal may not be taken from the final order in a
§ 2255 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 for claims addressed by
the district court on the merits 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 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. 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 Childress has not made the requisite showing. The issue of
whether the district court properly denied Childress a further
extension of time to appeal the denial of his § 2255 motion, beyond
the extension already granted by the district court pursuant to
Fed. R. App. P. 4(a), previously was considered by this court and
determined adversely to Childress. United States v. Childress, No.
03-6077 (4th Cir. 2003) (unpublished). This court will not revisit
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that issue. Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th Cir. 1976).* 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
*
We note that Childress filed a series of five notices of
appeal and only the last one was docketed as such and referred to
this court. However, because Childress challenges in his informal
brief only the district court’s decision denying him a second
extension of time to appeal the denial of his § 2255 motion, our
review is limited to that issue. See 4th Cir. R. 34(b).
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