United States v. Henry ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6839
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLTON ELSWORTH HENRY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. N. Carlton Tilley,
Jr., Chief District Judge. (CR-95-75)
Submitted: September 27, 2005 Decided: October 3, 2005
Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Carlton Elsworth Henry, Appellant Pro Se. Clifton Thomas Barrett,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carlton Elsworth Henry, a federal prisoner, seeks to
appeal the district court’s order accepting the recommendation of
the magistrate judge and dismissing his 28 U.S.C. § 2255 (2000)
motion as successive.* 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 a district court 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 both that the district court’s assessment of his
constitutional claims is debatable or wrong 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 Henry 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
*
Henry filed a “motion for review of sentence imposed in
violation of law,” which the district court construed as a motion
to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255.
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materials before the court and argument would not aid the
decisional process.
DISMISSED
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