James Smith v. US, No. 11-7366 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-7366 JAMES P. SMITH, Petitioner - Appellant, v. UNITED STATES OF AMERICA; THE BATF, Respondents - Appellees. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:08-cv-00919) Submitted: January 31, 2012 Decided: February 3, 2012 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. James Preston Smith, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James P. Smith seeks to appeal the district court s order accepting the recommendation of the magistrate judge, construing his 28 U.S.C. § 2241 (2006) petition as a successive 28 U.S.C.A. § 2255 (West Supp. 2011) motion, 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)(B) (2006). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief demonstrate on both procedural that the When the district court grounds, dispositive the prisoner procedural must ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. We have independently reviewed the Slack, 529 U.S. at 484-85. record Smith has not made the requisite showing. a certificate dispense with of appealability oral argument and 2 conclude that Accordingly, we deny dismiss because and the the appeal. facts and We 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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