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  • United States v. Smith, 4th Cir. (2006)

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    George Smith appealed the district court's denial of his 28 U.S.C. § 2255 motion. The Fourth Circuit Court of Appeals dismissed the appeal, finding that Smith did not make the requisite showing to obtain a certificate of appealability, which is required to appeal the denial of a § 2255 motion. Specifically, the court determined that reasonable jurists would not find Smith's constitutional claims to be debatable or the district court's procedural rulings to be debatable or wrong. Therefore, the court denied a certificate of appealability and dismissed the appeal without oral argument.

    Original Description:

    Filed: 2006-03-23 Precedential Status: Non-Precedential Docket: 04-7456

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    George Smith appealed the district court's denial of his 28 U.S.C. § 2255 motion. The Fourth Circuit Court of Appeals dismissed the appeal, finding that Smith did not make the requisite showing to obtain a certificate of appealability, which is required to appeal the denial of a § 2255 motion. Specifically, the court determined that reasonable jurists would not find Smith's constitutional claims to be debatable or the district court's procedural rulings to be debatable or wrong. Therefore, the court denied a certificate of appealability and dismissed the appeal without oral argument.

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    5 views2 pages

    United States v. Smith, 4th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    George Smith appealed the district court's denial of his 28 U.S.C. § 2255 motion. The Fourth Circuit Court of Appeals dismissed the appeal, finding that Smith did not make the requisite showing to obtain a certificate of appealability, which is required to appeal the denial of a § 2255 motion. Specifically, the court determined that reasonable jurists would not find Smith's constitutional claims to be debatable or the district court's procedural rulings to be debatable or wrong. Therefore, the court denied a certificate of appealability and dismissed the appeal without oral argument.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-7456

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    GEORGE SMITH,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of Virginia, at Richmond.
    James R. Spencer, District
    Judge. (CR-00-343)

    Submitted:

    February 13, 2006

    Decided:

    March 23, 2006

    Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    George Smith, Appellant Pro Se. John Staige Davis, V, OFFICE OF


    THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    George P. Smith seeks to appeal the district courts
    order denying relief on his motion filed under 28 U.S.C. 2255
    (2000).
    judge

    The order is not appealable unless a circuit justice or


    issues

    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, 336-38 (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 Smith 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 materials before the
    court and argument would not aid the decisional process.

    DISMISSED

    - 2 -

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