US v. Stewart

Filing 920071121

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6456 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SAMUEL AUGUSTUS STEWART, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (5:95-cr-70063-jct-1; 7:07-cv-00110-jct) Submitted: November 15, 2007 Decided: November 21, 2007 Before WILLIAMS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Samuel Augustus Stewart, Appellant Pro Se. Sharon Burnham, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Samuel Augustus Stewart seeks to appeal the district court's order construing his filing as a successive 28 U.S.C. 2255 (2000) motion and dismissing it as such. 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." 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, 683-84 (4th Cir. 2001). record and conclude that We have independently reviewed the has not made the requisite Stewart showing. Accordingly, we deny a certificate of appealability and We dispense with oral argument because the are and adequately argument presented not in aid the the dismiss the appeal. facts and legal before contentions the court materials would decisional process. DISMISSED - 2 -

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