United States v. Gravette , 80 F. App'x 869 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6981
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARMSTEAD GRAVETTE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CR-90-102-A, CA-91-711-AM)
Submitted: October 24, 2003 Decided: November 17, 2003
Before WIDENER, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Armstead Gravette, Jr., Appellant Pro Se. Paul Joseph McNulty,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Armstead Gravette seeks to appeal the district court’s order
accepting the report and recommendation of a magistrate judge and
denying relief on his petition styled as a motion under Fed. R.
Civ. P. 60(b), but properly construed by the district court as a
motion under 28 U.S.C. § 2255 (2000). See United States v.
Emmanuel, 288 F.3d 644, 649 (4th Cir. 2002) (noting that a district
court may construe a pleading as a § 2255 motion sua sponte when
doing so will not deprive the movant of his right to file a timely,
non-successive § 2255 motion). The order is appealable only if 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, ,
123 S. Ct. 1029, 1039 (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 Gravette 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
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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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