US v. Elsesser

Filing 920061018

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6512

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus KEITH A. ELSESSER, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Lyle E. Strom, Senior District Judge, sitting by designation. (3:01-cr-00079-3; 3:05-cv00400)

Submitted:

October 4, 2006

Decided:

October 18, 2006

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Gregory J. Rufo, THE RUFO LAW FIRM, Canton, Ohio, for Appellant. Kenneth M. Smith, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM: Keith A. Elsesser seeks to appeal the district court's order denying relief on his 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 Elsesser 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

2