Young v. US

Filing 920060908

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6838

LARRY ARNOLD YOUNG, Plaintiff - Appellant, versus UNITED STATES OF AMERICA, Defendant - Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. David A. Faber, Chief District Judge. (1:88-cr-00112; 1:04-cv-1282)

Submitted: August 31, 2006

Decided: September 8, 2006

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Larry Arnold Young, Appellant Pro Se. Michael Lee Keller, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM: Larry Arnold Young seeks to appeal from the district court's order construing his motion for modification of his

sentence as a motion under 28 U.S.C. § 2255 (2000), and denying relief because this was a successive motion for which authorization had not been obtained. We find that the district court properly See Raines v. United Cir. 1970); see also

construed the motion as one under § 2255. States, 423 F.2d 526, 528 & n.1 (4th

Gonzalez v. Crosby, 125 S. Ct. 2641, 2647 (2005) (where a motion is "in substance a successive habeas petition," it "should be treated accordingly"). Because Young's motion was properly construed as a § 2255 motion, the order denying the motion is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); Jones v. Braxton, 392 F.3d 683 (4th Cir. 2004). 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 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).

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We have independently reviewed the record and conclude that Young has not made the requisite showing. Accordingly, we deny a We dispense

certificate of appealability and dismiss the appeal.

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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