Public-domain · open source
OpenJurist

111 F. App'x 184

United States v. Smith

U.S. Courts of Appeals

Decided October 21, 2004

U.S. Courts of Appeals · decided 2004-10-21

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2255 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Slack v. McDaniel · Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division · Blakely v. Washington

Decided 2004-10-21

PER CURIAM.

¶1Ellis James Smith seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2255 (2000). 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 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 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.

¶2DISMISSED

¶3 After submitting his informal brief, Smith filed a Fed. R.App. P. 28(j) letter titled a "Motion to Amend/Supplement COA Memorandum” asking this Court to consider his case in light of the Supreme Court's recent holding in Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). However, Blakelyhas not been held by the Supreme Court to apply retroactively to cases on collateral review. Accordingly, we decline Smith’s request to issue a certificate of appealability based on the Blakelydecision.

/111/fappx/184 · .json · Public domain