Bailey v. US, No. 07-6850 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6850 ERNEST BAILEY, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:00-cr-00152-MJG; 1:07-cv-00149-MJG) Submitted: April 17, 2008 Decided: April 21, 2008 Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Ernest Bailey, Appellant Pro Se. Lynne Ann Battaglia, A. David Copperthite, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ernest Bailey seeks to appeal the district court s order denying his Fed. R. Civ. P. 60(b) motion for reconsideration of the district court s order denying relief on his 28 U.S.C. § 2255 (2000) motion and construing that motion as a § 2255 motion and dismissing it without prejudice. Bailey also seeks to appeal the district court s subsequent orders denying his motion to alter or amend judgment and his motion for a certificate of appealability. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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. 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 Bailey 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 - 2 - presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 3 -
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