US v. Terry Johnson

Filing 920081218

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7568

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRY KERMIT JOHNSON, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:98-cr-00289-RKV-6; 5:03-cv00049-RLV)

Submitted:

December 11, 2008

Decided:

December 18, 2008

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Terry Kermit Johnson, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Terry Kermit Johnson seeks to appeal the district

court's order denying his motion to reopen under Fed. R. Civ. P. 60(b)(4). or judge The order is not appealable unless a circuit justice 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." this 28 U.S.C. § 2253(c)(2) (2000). by demonstrating that A prisoner satisfies jurists would

standard

reasonable

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 record (4th and Cir. 2001). that We have independently has not made reviewed the the

conclude

Johnson

requisite

showing.

Accordingly, we deny a certificate of appealability We dispense with oral argument because

and dismiss the appeal.

the facts and legal contentions are adequately presented in the

The underlying Rule 60(b) motion is Johnson's sixth postjudgment motion seeking reconsideration of the district court's July 2006 order denying relief on his 28 U.S.C. § 2255 (2000) motion.

2

materials

before

the

court

and

argument

would

not

aid

the

decisional process. DISMISSED

3