US v. Johney Freeman

Filing 920080917

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7121 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNEY FREEMAN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:88-cr-00076-jcc-2; 2:97-cv-00409-jcc) Submitted: September 11, 2008 Decided: September 17, 2008 Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Johney Freeman, Appellant Pro Se. Robert Joseph Seidel, Jr., Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johney Freeman seeks to appeal the district court's order treating his "Writ of Coram Nobis" as a successive 28 U.S.C. 2255 (2000) motion, and dismissing it on that basis. 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). We have independently reviewed the record and conclude that Freeman has not made the requisite 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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