UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7284

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EARL ADOLPHUS ALLEYNE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (CR-02-150; CA-04-760-2)

Submitted: January 9, 2006 Decided: January 23, 2006

Before WILLIAMS, KING, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Earl Adolphus Alleyne, Appellant Pro Se. Kevin Michael Comstock, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Earl Adolphus Alleyne seeks to appeal the district

court’s order denying relief on his

(2000) motion.

An appeal may not be taken from the final order in a

proceeding unless a circuit justice or judge issues a

certificate of appealability.

(c)(1) (2000). A

certificate of appealability will not issue absent “a substantial

showing of the denial of a constitutional right.”

(c)(2) (2000). A prisoner satisfies this standard by

demonstrating that reasonable jurists would find that the district

court’s assessment of his constitutional claims is debatable and

that any dispositive procedural rulings by the district court are

also debatable or wrong. See Miller-El v. Cockrell,

(2003); Slack v. McDaniel,

(2000); Rose v.

Lee,

(4th Cir. 2001). For the reasons that

follow, we deny a certificate of appealability and dismiss

Alleyne’s appeal.

Alleyne argues that his Fifth and Sixth Amendment rights

were denied because his sentence was enhanced pursuant to the

career offender provision of the U.S. Sentencing Guidelines Manual

§ 4B1.1 (2003). Alleyne did not raise the issue on direct appeal.

The issue is therefore procedurally defaulted unless his § 2255

motion demonstrates cause for and actual prejudice from the

default, or actual innocence. United States v. Harris, 183 F.3d

- 2 - 313, 317 (4th Cir. 1999). We agree with the district court that

Alleyne has not made the requisite showing. Moreover, to the

extent Alleyne seeks retroactive application of the Supreme Court’s

decision in United States v. Booker,

(2005), such a

claim is foreclosed by our decision in United States v. Morris,

(4th Cir. 2005). Accordingly, we deny 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

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