United States v. Fairley , 271 F. App'x 369 ( 2008 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-7279
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    BILLY RAY FAIRLEY, SR.,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham.     James A. Beaty, Jr.,
    District Judge. (1:02-cr-00229-JAB; 1:07-cv-00475-JAB)
    Submitted:   March 27, 2008                 Decided:   April 1, 2008
    Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Dismissed by unpublished per curiam opinion.
    Billy Ray Fairley, Sr., Appellant Pro Se. Randall Stuart Galyon,
    Assistant United States Attorney; Angela Hewlett Miller, OFFICE OF
    THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Billy Ray Fairley, Sr., seeks to appeal the district
    court’s order accepting the recommendation of the magistrate judge,
    treating his 
    18 U.S.C. § 3582
    (c)(2) (2000) motion as a successive
    
    28 U.S.C. § 2255
     (2000) motion, and dismissing it on that basis.
    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 Fairley has not
    made the requisite showing.   Accordingly, we deny Fairley’s motion
    for a certificate of appealability and dismiss the appeal.           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.
    DISMISSED
    - 2 -
    

Document Info

Docket Number: 07-7279

Citation Numbers: 271 F. App'x 369

Judges: Traxler, Duncan, Hamilton

Filed Date: 4/1/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024