US v. Day, (4th Cir. 2008)

Status: Not Published

Docket Number: 08-6441

Linked as:

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-6441

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID ALLEN DAY,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Roanoke. James C. Turk, Senior District

Judge. (5:02-cr-30064-jct-1; 7:07-cv-00376-jct-mfu)

Submitted: July 22, 2008 Decided: July 25, 2008

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Allen Day, Appellant Pro Se. Craig Jon Jacobsen, Assistant

United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Allen Day seeks to appeal the district court's orders denying relief on his 28U.S.C. § 2255 (2000) motion and his Fed. R. Civ. P. 59(e) motion for reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28U.S.C.

§ 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. 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 Day 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