United States v. Smith , 205 F. App'x 156 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARRETT DON SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:04-cr-00466-GRA; 6:05-cv-02932-GRA)
Submitted: March 13, 2006 Decided: October 12, 2006
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Garrett Don Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Garrett Don Smith, a federal prisoner, seeks to appeal
the district court’s order denying his motion for summary judgment
and granting the Government an extension of time in which to
respond to his motion filed under 28 U.S.C. § 2255 (2000). We have
reviewed the record and conclude that Smith has not made “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2000). Accordingly, we deny a certificate of
appealability and dismiss this portion of the appeal.
Smith also appeals from the district court’s order
denying relief on his claims that the court erred in relying on
prior convictions to enhance his sentence without first providing
the notice required by 21 U.S.C. § 851 (2000), and that, in light
of United States v. Booker, 543 U.S. 220 (2005), his sentence
violated the Sixth Amendment. In this order, the district court
also granted relief under United States v. Peak, 992 F.2d 39 (4th
Cir. 1993), on Smith’s claim that counsel failed to file a notice
of appeal from the criminal judgment after being directed to do so,
vacated the criminal judgment, and reinstated the judgment to
afford Smith an opportunity to file a direct appeal.* We note that
Smith’s direct appeal currently is pending before this court.
Because the sentencing claims on which the district court denied
*
Smith does not challenge on appeal the district court’s grant
of relief under Peak.
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§ 2255 relief on the merits may be raised in the reinstated direct
appeal, we grant a certificate of appealability, modify the
district court’s dismissal of Smith’s sentencing claims to be
without prejudice, and affirm the dismissal as modified.
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.
AFFIRMED IN PART;
DISMISSED IN PART
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