US v. Fairley, No. 07-7279 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7279 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BILLY RAY FAIRLEY, SR., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (1:02-cr-00229-JAB; 1:07-cv-00475-JAB) Submitted: March 27, 2008 Decided: April 1, 2008 Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Billy Ray Fairley, Sr., Appellant Pro Se. Randall Stuart Galyon, Assistant United States Attorney; Angela Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Billy Ray Fairley, Sr., seeks to appeal the district court s order accepting the recommendation of the magistrate judge, treating his 18 U.S.C. § 3582(c)(2) (2000) motion 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. (2000). 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. U.S.C. § 2253(c)(2) (2000). demonstrating that 28 A prisoner satisfies this standard by 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, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Fairley has not made the requisite showing. Accordingly, we deny Fairley s motion for a certificate of appealability and dismiss the appeal. 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 - 2 -

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