United States v. Smith
United States v. Smith
Opinion of the Court
Eugene Kenny Smith seeks to appeal the district court’s order construing his Fed.R.Civ.P. 60(b) motion as an unauthorized successive motion filed under 28 U.S.C. § 2255 (2000), and dismissing for lack of jurisdiction. An appeal may not be taken from the final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
We also construe Smith’s notice of appeal and informal brief as an application
DISMISSED
Reference
- Full Case Name
- United States v. Eugene Kenny SMITH
- Status
- Published