332 FAPPX 108 - United States v. Smith

                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-6281


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ANTOINE NOBEL SMITH,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:00-cr-00148-BO-1; 5:01-cr-00180-BO-1)


Submitted:    August 20, 2009                 Decided:    August 26, 2009


Before WILKINSON and      MICHAEL,    Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Dismissed by unpublished per curiam opinion.


Antoine Nobel Smith, Appellant Pro Se.  Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Antoine     Nobel       Smith       seeks    to     appeal         the    district

court’s order denying relief on his motion to “reopen a voided

judgment due to res judicata and/or collateral estoppel” and

construed as an attempt to file a

28 U.S.C.A. § 2255

 (West Supp.

2009) motion.           The order is not appealable unless a circuit

justice    or    judge    issues       a    certificate         of    appealability.

28 U.S.C. § 2253

(c)(1) (2006).                 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)            (2006).           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 dispositive procedural ruling by the district

court is likewise debatable.                  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

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