United States v. Fleming , 84 F. App'x 314 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7019
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEREK MARQUIS FLEMING,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-91-179-G, CA-02-928-1)
Submitted: November 19, 2003 Decided: December 30, 2003
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Derek Marquis Fleming, Appellant Pro Se. Paul Alexander Weinman,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Derek Marquis Fleming seeks to appeal the district court’s
order accepting the magistrate judge’s recommendation to dismiss
his motion to correct a clerical error in the judgment pursuant to
Fed. R. Crim. P. 36, which the district court construed as a
successive motion filed under 28 U.S.C. § 2255 (2000), and
dismissed for lack of jurisdiction. He also appeals from the
district court’s order denying his motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e). An appeal may not be
taken from the final order in a post-conviction 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 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. 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 Fleming’s preliminary informal brief on appeal and
conclude that Fleming has not made the requisite showing. To the
extent Fleming’s notice of appeal and appellate brief could be
construed as a motion for authorization to file a successive § 2255
2
motion, we deny such authorization. See United States v. Winestock,
340 F.3d 200, 208 (4th Cir. 2003), cert. denied, U.S. , 2003
WL 22232622 (U.S. Nov. 3, 2003) (No. 03-6548).
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
3