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119 F. App'x 552

United States v. Jackson

U.S. Courts of Appeals

Decided January 21, 2005

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U.S. Courts of Appeals · decided 2005-01-21

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 · Rose v. Lee

Dismissed by unpublished PER CURIAM opinion · Decided 2005-01-21

PER CURIAM.

¶1 Kelles Dion Jackson seeks to appeal the district court’s order recharacterizing his motion brought pursuant to Fed.R.Crim.P. 35(a) as a 28 U.S.C. § 2255 motion and dismissing it as untimely and successive. We have reviewed the record and the district court’s opinion and conclude that Jackson’s motion was properly recharacterized as one arising under § 2255. * See Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

¶2 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 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 Jackson 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.

¶3 DISMISSED

*

¶4 It is well established that a motion brought pursuant to Fed.R.Crim.P. 35(a) is limited to the correction of an illegal sentence. Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A sentence is illegal if the punishment meted out was in excess of that prescribed by the relevant statutes, multiple terms were imposed for the same offense, or the terms of the sentence itself were legally or constitutionally invalid in any other respect. We have interpreted Hill’s third basis for a Rule 35(a) motion, sentences that are legally or constitutionally invalid in any other respect, to implicate only sentences that are "ambiguous or internally contradictory." United States v. Pavlico, 961 F.2d 440, 443 (4th Cir.1992). Jackson’s allegations do not meet any of these requirements.

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