US v. Marvin Witherspoon, No. 08-8484 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8484 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARVIN HAROLD WITHERSPOON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:04-cr-00005-RLV-DCK-1; 5:07-cv00021-RLV) Submitted: January 15, 2009 Before MOTZ and Circuit Judge. SHEDD, Circuit Decided: Judges, and January 26, 2009 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marvin Harold Witherspoon seeks to appeal the district court s order motion. The order is not appealable unless a circuit justice or judge issues denying a relief certificate § 2253(c)(1) (2000). issue absent constitutional prisoner a constitutional of substantial right. jurists his 28 U.S.C. § 2255 appealability. (2000) 28 U.S.C. A certificate of appealability will not satisfies reasonable on 28 this would claims by showing U.S.C. the the denial § 2253(c)(2) standard find of by that district of (2000). demonstrating any assessment court is a A that of the 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 Witherspoon has not made the requisite showing. certificate dispense of with appealability oral argument and Accordingly, we deny a dismiss because 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 2

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