US v. Smart, (4th Cir. 2006)
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7643
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HERBERT SMART,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (2:97-cr-00025-RAJ)
Submitted: November 15, 2006 Decided: November 27, 2006
Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Herbert Smart, Appellant Pro Se. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM: Herbert Smart seeks to appeal the district court's order denying relief on his 28U.S.C. § 2255 (2000) motion. 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 Smart 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 *To the extent Smart seeks authorization under 28U.S.C.
§ 2244 (2000), to file a second or successive motion, we deny relief.
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This document cites
- U.S. Supreme Court - Miller-El v. Cockrell, 537 U.S. 322 (2003)
- U.S. Supreme Court - Slack v. McDaniel, 529 U.S. 473 (2000)
- U.S. Court of Appeals for the Fourth Circuit - John Hardy Rose, Petitioner-Appellant, v. R. C. Lee, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee. John Hardy Rose, Petitioner-Appellee, v. R. C. Lee, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellant.
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