US v. Gerald Hopper

Filing 920080910

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6895 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERALD DAMONE HOPPER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge. (3:95-cr-00119-TW; 3:96-cv-00217-MR) Submitted: August 19, 2008 Decided: September 10, 2008 Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Gerald Damone Hopper, Appellant Pro Se. Robert James Conrad, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gerald Damone Hopper 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 justice or judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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). We have independently reviewed the record and conclude that Hopper 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 As an additional ground for denying relief, the district court found that Hopper's Rule 60(b) motion amounted to an unauthorized second or successive 2255 motion. Our review of Hopper's motion leads us to conclude that the motion was a true Rule 60(b) motion. 2 * presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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