United States v. Osbourne ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DUANE JELEAL OSBOURNE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-95-178-V, CA-99-420-3)
No. 03-7214
In Re: DUANE JELEAL OSBOURNE,
Petitioner.
_______________
On Petition for Writ of Mandamus.
(CA-99-420-3, CR-95-178-V)
_______________
Submitted: October 23, 2003 Decided: October 30, 2003
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
No. 03-6588 dismissed and No. 03-7214 petition denied by
unpublished per curiam opinion.
Duane Jeleal Osbourne, Appellant Pro Se. Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In No. 03-6588, Duane Jeleal Osbourne, a federal prisoner,
seeks to appeal the district court’s orders denying relief on his
motion filed under 28 U.S.C. § 2255 (2000), and his motions to
amend. The orders are not appealable 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, , 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 Osbourne has
not made the requisite showing.* Accordingly, we deny a certificate
of appealability and dismiss the appeal in No. 03-6588.
In No. 03-7214, Osbourne petitions for a writ of mandamus,
asking this court to direct the district court to rule on his
request for a certificate of appealability. We have determined
*
We decline to address the issues Osbourne raises for the
first time on appeal. See Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993) (holding that claims raised for first time on
appeal will not be considered absent exceptional circumstances).
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that Osbourne has not made the requisite showing for a certificate
of appealability in Appeal No. 03-6588. Thus, although we grant
Osbourne leave to proceed in forma pauperis, we deny the mandamus
petition as moot. 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.
No. 03-6588-DISMISSED
No. 03-7214-PETITION DENIED
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