United States v. Burnette , 280 F. App'x 324 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6219
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN AUBREY BURNETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:99-cr-00109-jct-mfu-1; 7:08-cv-80019-jct-mfu)
Submitted: May 1, 2008 Decided: June 9, 2008
Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Steven Aubrey Burnette, Appellant Pro Se. Thomas Jack Bondurant,
Jr., Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Aubrey Burnette seeks to appeal the district
court’s order denying as successive his 28 U.S.C. § 2255 (2000)
motion.* 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
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. 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, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Burnette has
not made the requisite showing. Accordingly, we deny Burnette’s
motion for certificate of appealability and dismiss the appeal. We
also deny Burnette’s motions for appointment of counsel and for the
preparation of a transcript at the Government’s expense. We
dispense with oral argument because the facts and legal contentions
*
Although Burnette characterized the motion as one under 28
U.S.C. § 1651 (2000), the district court properly construed the
motion as a § 2255 proceeding. See In re Vial, 115 F.3d 1192, 1194
(4th Cir. 1997) (en banc).
- 2 -
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
- 3 -