United States v. Holton , 109 F. App'x 593 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6766
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNY MONTANA HOLTON, a/k/a K.G.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-98-9; CA-03-91-4-H)
Submitted: September 16, 2004 Decided: September 22, 2004
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenny Montana Holton, Appellant Pro Se. Jane J. Jackson, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenny Montana Holton, a federal prisoner, seeks to appeal
the district court’s order denying relief on his motion filed under
28 U.S.C. § 2255 (2000). The order 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, 336-
38 (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 Holton 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
*
After submitting his informal brief, Holton filed a motion
for leave to amend his pending application for a certificate of
appealability asking this court to consider his case in light of
the Supreme Court’s recent decision in Blakely v. Washington, 124
S. Ct. 2531 (2004). We deny Holton’s motion. Blakely has not been
held by the Supreme Court to apply retroactively to cases on
collateral review. See Tyler v. Cain, 533 U.S. 656, 662 (2001); In
re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (holding that Blakely
is not retroactively applicable to cases on collateral review).
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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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