United States v. Vance

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7688
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY LEE VANCE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (CR-94-22)
Submitted: January 13, 2005 Decided: January 20, 2005
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ricky Lee Vance, Appellant Pro Se. Steven Randall Ramseyer, OFFICE
OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ricky Lee Vance seeks to appeal the district court’s
order dismissing his motion to reduce sentence under Fed. R. Crim.
P. 35(a), which the district court construed as a successive motion
filed under 28 U.S.C. § 2255 (2000).* An appeal may not be taken
from the final order in a § 2255 proceeding 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 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
(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 Vance 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
*
Because the district court correctly construed Vance’s motion
as a successive § 2255 motion, we consider Vance’s appeal as a
civil action. We note that, because a Fed. R. Crim. P. 35 motion
is part of the criminal case, Vance’s notice of appeal would be
untimely to appeal the denial of a Rule 35 motion under Fed. R.
App. P. 4(b).
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materials before the court and argument would not aid the
decisional process.
DISMISSED
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