US v. Holmes

Filing 920080306

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-7424

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN NELSON HOLMES, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. C. Weston Houck, Senior District Judge. (4:01-cr-00121-CWH; 4:05-cv-02953-CWH)

Submitted:

February 28, 2008

Decided: March 6, 2008

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Benjamin Nelson Holmes, Appellant Pro Se. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Benjamin Nelson Holmes seeks to appeal the district court's order denying as moot several nondispositive motions filed during the pendency of Holmes' unsuccessful 28 U.S.C. § 2255 (2000) motion. judge The order is not appealable unless a circuit justice or a certificate of appealability. See 28 U.S.C.

issues

§ 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. See 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 Holmes has not made the requisite showing. Accordingly, we deny Holmes'

motion for 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

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