US v. Fleming, No. 05-7776 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7776 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DEREK MARQUIS FLEMING, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (CR-91-179; CR-91-78; CA-05-602-1) Submitted: August 31, 2006 Decided: September 5, 2006 Before MICHAEL, MOTZ, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Derek Marquis Fleming, Appellant Pro Se. Angela Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Derek Marquis Fleming seeks to appeal the district court s order accepting the recommendation of the magistrate judge, construing a motion for clarification of the criminal judgment as a successive motion under 28 U.S.C. § 2255 (2000), and dismissing it for lack of jurisdiction. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). not issue absent a A certificate of appealability will substantial constitutional right. showing of the denial 28 U.S.C. § 2253(c)(2) (2000). of a 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, 68384 (4th Cir. 2001). conclude that We have independently reviewed the record and Fleming has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. and We deny Fleming s petition for writ of mandamus as moot 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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