United States v. Dockery
Opinion
Craig Dockery seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2000) motion. The order is not appealable 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 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 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, 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, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Dockery has not made the requisite showing. * Aecording *107 ly, 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.
In addition to the reasons stated by the district court, Dockery’s claim filed pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is not cognizable, as such a claim does not apply retroactively to cases on collateral review. See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). Moreover, his ineffective assistance of counsel claims based on counsel’s failure to object pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and failure to bring him *107 a tape recorder so Dockery personally could hear the taped evidence against him prior to pleading guilty are without merit as Dockery failed to establish error and prejudice, as required by Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Craig DOCKERY, Defendant-Appellant
- Status
- Unpublished