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164 F. App'x 464

United States v. Smith

U.S. Courts of Appeals

Decided February 23, 2006

U.S. Courts of Appeals · decided 2006-02-23

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 United States v. Booker · Slack v. McDaniel · Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division

Decided 2006-02-23

PER CURIAM:

¶1Robert 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 *465justice 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 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, 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 (4th Cir.2001). We have independently reviewed the record and conclude that Smith has not made the requisite showing. See also United States v. Morris, 429 F.3d 65, 72 (4th Cir.2005) (holding that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is not retroactively applicable to cases on collateral review). 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

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