Smith v. Jackson

Filing 920070724

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-6411

DAVID LEE SMITH, Petitioner - Appellant, versus RICK JACKSON, Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:06-hc-02061-BO)

Submitted: July 19, 2007

Decided:

July 24, 2007

Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

David Lee Smith, Appellant Pro Se. Diane Appleton Reeves, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Lee Smith seeks to appeal the district court's order denying his Fed. R. Civ. P. 59(e) motion for reconsideration of the district court's order denying relief on his 28 U.S.C. § 2254 (2000) petition. The order is not appealable unless a

circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). not issue absent "a A certificate of appealability will showing of the denial of a

substantial

constitutional right."

28 U.S.C. § 2253(c)(2) (2000).

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, 68384 (4th Cir. 2001). conclude that We have independently reviewed the record and has not made the requisite showing.

Smith

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 -