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271 F. App'x 369

United States v. Fairley

U.S. Courts of Appeals

Decided April 1, 2008

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U.S. Courts of Appeals · decided 2008-04-01

Applies 18 U.S.C. § 3582 · 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Dismissed by unpublished PER CURIAM opinion · Decided 2008-04-01

PER CURIAM:

¶1 Billy Ray Fairley, Sr., seeks to appeal the district court’s order accepting the recommendation of the magistrate judge, treating his 18 U.S.C. § 3582(c)(2) (2000) motion as a successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on that basis. 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 ap-pealability 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 dis-positive 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 Fairley has not made the requisite showing. Accordingly, we deny Fairley’s motion for a certificate of appealability and dismiss the appeal. We dispense with oral argument because *370 the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

¶2 DISMISSED.

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