United States v. Garner , 172 F. App'x 519 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7661
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY DAVIS GARNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-02-134; CA-04-507-2)
Submitted: March 30, 2006 Decided: April 7, 2006
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Anthony Davis Garner, Appellant Pro Se. Laura Marie Everhart,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Davis Garner seeks to appeal a district court
order denying as a second or successive 28 U.S.C. § 2255 (2000)
motion his motion filed under Fed. R. Civ. P. 60(b).1 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 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 Garner 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
1
Although Garner filed his motion under Fed. R. Civ. P. 59(e),
the motion was filed fourteen days after the district court’s order
dismissing his § 2255 motion. Thus, the motion was properly
construed as a motion for relief from judgment under Fed. R. Civ.
P. 60(b).
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.2
DISMISSED
2
To the extent that Garner may be seeking authorization under
28 U.S.C. § 2244 (2000) to file a second and successive 28 U.S.C.
§ 2255 (2000) motion based upon United States v. Booker, 543 U.S.
220 (2005); Blakely v. Washington, 542 U.S. 296 (2005); and
Apprendi v. New Jersey, 530 U.S. 466 (2000), we deny authorization.
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