United States v. Derbaum , 193 F. App'x 203 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICIA DERBAUM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:97-cr-00453-DCN)
Submitted: July 25, 2006 Decided: August 2, 2006
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Patricia Derbaum, Appellant Pro Se. Kevin Frank McDonald, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Patricia Derbaum seeks to appeal the district court’s
order treating her “Motion to Compel the Government to File a
Motion pursuant to Federal Rules of Criminal Procedure 35(b) or in
the Alternative for Evidentiary Hearing” as a 28 U.S.C. § 2255(2000) motion, and dismissing it as successive. 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 Derbaum 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 presented in the
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materials before the court and argument would not aid the
decisional process.
DISMISSED
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