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    The United States Court of Appeals for the Fourth Circuit dismissed Ellis James Smith's appeal of the district court's denial of his motion for relief under 28 U.S.C. § 2255. The court determined that Smith did not make the requisite showing to receive a certificate of appealability, as he did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. Additionally, the court declined to consider Smith's request to apply the Supreme Court's recent Blakely decision retroactively to his case on collateral review, as Blakely has not been held to apply retroactively in such cases.

    Original Description:

    Filed: 2004-10-21 Precedential Status: Non-Precedential Docket: 04-6038

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    The United States Court of Appeals for the Fourth Circuit dismissed Ellis James Smith's appeal of the district court's denial of his motion for relief under 28 U.S.C. § 2255. The court determined that Smith did not make the requisite showing to receive a certificate of appealability, as he did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. Additionally, the court declined to consider Smith's request to apply the Supreme Court's recent Blakely decision retroactively to his case on collateral review, as Blakely has not been held to apply retroactively in such cases.

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    Public Domain
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    3 views2 pages

    United States v. Smith, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed Ellis James Smith's appeal of the district court's denial of his motion for relief under 28 U.S.C. § 2255. The court determined that Smith did not make the requisite showing to receive a certificate of appealability, as he did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. Additionally, the court declined to consider Smith's request to apply the Supreme Court's recent Blakely decision retroactively to his case on collateral review, as Blakely has not been held to apply retroactively in such cases.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-6038

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    ELLIS JAMES SMITH,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
    District Judge. (CR-02-25-BO; CA-03-340-5-BO)

    Submitted:

    May 12, 2004

    Decided:

    October 21, 2004

    Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Ellis James Smith, Appellant Pro Se. Felice McConnell Corpening,


    OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Ellis James 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 (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 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
    *

    After submitting his informal brief, Smith filed a Fed. R.


    App. P. 28(j) letter titled a Motion to Amend/Supplement COA
    Memorandum asking this Court to consider his case in light of the
    Supreme Courts recent holding in Blakely v. Washington, 124 S. Ct.
    2531 (2004). However, Blakely has not been held by the Supreme
    Court to apply retroactively to cases on collateral review.
    Accordingly, we decline Smiths request to issue a certificate of
    appealability based on the Blakely decision.
    - 2 -

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