US v. McNeal

Filing 920070606

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7863 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TYREF MCNEAL, a/k/a Beans, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge. (1:05-cr-00050-IMK; 1:06-cv-00139-IMK) Submitted: March 21, 2007 Decided: June 6, 2007 Before WILLIAMS, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Tyref McNeal, Appellant Pro Se. Zelda Elizabeth Wesley, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tyref McNeal seeks to appeal the district court's order denying relief on his 28 U.S.C. 2255 (2000) motion. not appealable unless a circuit justice or The order is issues a A judge certificate of appealability. 28 U.S.C. 2253(c)(1) (2000). 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 McNeal has not made the requisite showing. Accordingly, we deny a certificate of We dispense with oral appealability and dismiss the appeal.* 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 Though we conclude McNeal may assert his claim of ineffective assistance of counsel in relation to his guilty plea despite his waiver of collateral review, we find he fails to qualify for a certificate of appealability as to that claim. - 2 - *

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