US v. Octavius Cline

Filing 920080529

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6044 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OCTAVIUS S. CLINE, a/k/a Toby, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (6:02-cr-01358-HMH-12; 6:07-cv-70092-HMH) Submitted: May 22, 2008 Decided: May 29, 2008 Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Octavius S. Cline, Appellant Pro Se. Regan Alexandra Pendleton, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Octavius S. Cline seeks to appeal the district court's order denying his Fed. R. Civ. P. 60(b) motion* for reconsideration of the district court's order denying relief on his 28 U.S.C. 2255 (2000) motion. The order is not appealable unless a circuit 28 U.S.C. justice or judge issues a certificate of appealability. 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent "a 28 substantial showing of the denial of a constitutional right." U.S.C. 2253(c)(2) (2000). demonstrating that A prisoner satisfies this standard by jurists would find that any reasonable 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 Cline has not made the requisite showing. Accordingly, we deny a certificate of Cline originally filed his motion under Fed. R. Civ. P. 59(e). Because the motion was untimely as a Rule 59 motion, the district court construed the motion under Fed. R. Civ. P. 60(b). - 2 - * 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 - 3 -

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