United States v. Thornton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HAZEL ANN THORNTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (CR-00-596-WMN; CA-03-185-WMN)
Submitted: March 17, 2004 Decided: April 6, 2004
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Hazel Ann Thornton, Appellant Pro Se. James G. Warwick, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Hazel Ann Thornton seeks to appeal the district court’s
order denying relief on her motion filed under 28 U.S.C. § 2255(2000) and denying her motion for reduction of sentence filed under
Fed. R. Crim. P. 35.
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 that her
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). As to the denial of § 2255 relief, we
have independently reviewed the record and conclude that Thornton
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss her appeal of the court’s
denial of her § 2255 motion.
We may remedy the government’s refusal to move for a
reduction of sentence under Rule 35 only if the refusal is based on
an unconstitutional motive, such as racial animus, or if the
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government acted in bad faith. See Wade v. United States, 504 U.S.
181, 185-86 (1992). We conclude Thornton has not demonstrated the
Government acted in bad faith in refusing to move under Rule 35,
and we therefore affirm that aspect of the district court’s order.
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 IN PART;
AFFIRMED IN PART
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