US v. Shawn Smithwick, No. 10-6071 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6071 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWN RHONDU SMITHWICK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:06-cr-00121-F-1; 5:08-cv-00538-F) Submitted: April 13, 2010 Before TRAXLER, Judges. Chief Judge, Decided: and NIEMEYER and May 12, 2010 KING, Circuit Dismissed by unpublished per curiam opinion. Shawn Rhondu Smithwick, Appellant Pro Se. Anne Margaret Hayes, Rudolf A. Renfer, Jr., Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Shawn Rhondu Smithwick seeks to appeal the district court s order dismissing (West Supp. 2009) motion. as untimely his 28 U.S.C.A. § 2255 The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional prisoner right. satisfies reasonable jurists constitutional 28 this would claims by U.S.C. § 2253(c)(2) standard find the by that district (2006). demonstrating any assessment court is 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 Smithwick 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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