US v. Humphries

Filing 920060801

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6420

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TRACY DEMONT HUMPHRIES, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (2:91-cr-00153-UA-2; 1:05-cv-00359-JAB)

Submitted: July 25, 2006

Decided: August 1, 2006

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Tracy Demont Humphries, Appellant Pro Se. Angela Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM: Tracy Demont Humphries seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on his motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2000), which the district court construed as a successive 28 U.S.C. § 2255 (2000) motion. 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 appealability will not issue absent "a substantial showing of the denial of a constitutional right." § 2253(c)(2) (2000). that A prisoner satisfies would this 28 U.S.C. standard that by any

demonstrating

reasonable

jurists

find

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 Humphries has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the

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facts

and

legal before

contentions the court

are and

adequately argument

presented not

in aid

the the

materials

would

decisional process.

DISMISSED

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