US v. Derbaum, (4th Cir. 2006)

Status: Not Published

Docket Number: 06-6456

Linked as:

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-6456

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PATRICIA DERBAUM,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. David C. Norton, District Judge.

(2:97-cr-00453-DCN)

Submitted: July 25, 2006 Decided: August 2, 2006

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Patricia Derbaum, Appellant Pro Se. Kevin Frank McDonald, OFFICE

OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Patricia Derbaum seeks to appeal the district court's order treating her "Motion to Compel the Government to File a Motion pursuant to Federal Rules of Criminal Procedure 35(b) or in the Alternative for Evidentiary Hearing" as a 28U.S.C. § 2255 (2000) motion, and dismissing it as successive. The order is 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 Derbaum 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