US v. Theodore Wagner, No. 09-6488 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6488 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THEODORE THOMAS WAGNER, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. G. Ross Anderson, Jr., Senior District Judge. (3:08-cv-03235-GRA) Submitted: June 18, 2009 Decided: June 25, 2009 Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Theodore Thomas Wagner, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Theodore Thomas Wagner seeks to appeal the district court s order accepting the recommendation of the magistrate judge to dismiss the action without prejudice and dismissing his 28 U.S.C.A. § 2255 (West Supp. 2009) motion as successive. Wagner also seeks to appeal the district court s order denying his subsequent 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. (2006). 28 U.S.C. § 2253(c)(1) A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. standard § 2253(c)(2) by (2006). demonstrating that A prisoner reasonable satisfies jurists would this 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). conclude We that have Wagner independently has not made reviewed the the record requisite and showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. review. legal We also deny Wagner s petition for pre-enforcement We dispense with oral argument because the facts and contentions are adequately 2 presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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