163 FAPPX 243 - United States v. Smith

                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-7234



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ALLEN EARL SMITH,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-02-15; CA-04-155-H)


Submitted: January 19, 2006                 Decided:   January 25, 2006


Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Allen Earl Smith, Appellant Pro Se. Steve R. Matheny, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Allen Earl Smith seeks to appeal the district court’s

orders dismissing as untimely his

28 U.S.C. § 2255

 (2000) motion

and denying reconsideration.               The orders are 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    both    that    the   district    court’s        assessment   of   the

constitutional          claims      is    debatable       or    wrong    and   that    any

dispositive procedural rulings by the district court are also

debatable or wrong.               Miller-El v. Cockrell,

537 U.S. 322, 336-38


(2003); Slack v. McDaniel,

529 U.S. 473, 484

 (2000); Rose v. Lee,

252 F.3d 676, 683-84

 (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.



                                                                               DISMISSED

        *
      We recently concluded that the rule announced in United
States v. Booker,

543 U.S. 220

 (2005), is not retroactively
applicable to cases on collateral review. United States v. Morris,

429 F.3d 65, 72

 (4th Cir. 2005).

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