US v. Howie, No. 07-7212 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7212 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAYNO HOWIE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:98-cr-00192-JAB; 1:07-cv-00460-JAB) Submitted: July 22, 2008 Decided: July 24, 2008 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Jayno Howie, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jayno Howie seeks to appeal the district court s order accepting the recommendation of the magistrate judge, treating his motion under 18 U.S.C. § 3582(c)(2) (2000) as a successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 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. § 2253(c)(2) demonstrating (2000). that A prisoner reasonable satisfies jurists would this 28 U.S.C. standard find that by 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. See 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 Howie has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. - 2 - 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 - 3 -

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