United States v. Lynch ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6662
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES LYNN LYNCH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-99-322, CA-02-929-1)
Submitted: August 28, 2003 Decided: September 4, 2003
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
James Lynn Lynch, 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Unpublished opinions are not binding precedent in this circuit.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:
James Lynn Lynch seeks to appeal the district court’s order
and judgment adopting the report and recommendation of the
magistrate judge and denying relief on his motion filed under 28
U.S.C. § 2255 (2000) and his motion for downward departure. The
order and judgment is 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 Lynch has not
made the requisite showing. Accordingly, as for Lynch’s appeal from
that part of the order denying his § 2255 motion, we deny a
certificate of appealability and dismiss the appeal. We affirm
that part of the order denying his motion for a downward departure.
We grant his motion to proceed in forma pauperis. We dispense with
oral argument because the facts and legal contentions are
2
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART
3