United States v. Carter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7675
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL ANTHONY CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Frank W. Bullock, Jr.,
District Judge. (CR-00-64; CA-04-1018-1)
Submitted: February 23, 2006 Decided: March 6, 2006
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Anthony Carter, Appellant Pro Se. Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Anthony Carter seeks to appeal the district
court’s order accepting the recommendation of the magistrate judge
and dismissing as untimely 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 both
that the district court’s assessment of the constitutional claims
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 Carter 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
*
Carter’s Fed. R. Crim. P. 33 motion was dismissed without
prejudice in August 2004, and he did not appeal. He subsequently
filed a § 2255 motion, and the dismissal of this motion is the
subject of the present appeal.
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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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