US v. Eddie McLean

Filing 920090423

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8013 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EDDIE MCLEAN, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:02-cr-00037-BO-1; 5:07-cv-00119-BO) Submitted: April 16, 2009 Decided: April 23, 2009 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. William Gregory Duke, Greenville, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eddie McLean seeks to appeal the district court's order denying relief on his 28 U.S.C.A. 2255 (West Supp. 2008) motion. judge The order is not appealable unless a circuit justice or issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2006). issue absent "a A certificate of appealability will not showing of the denial of a A that the or substantial 28 constitutional prisoner reasonable right." U.S.C. standard 2253(c)(2) by any (2006). satisfies jurists this would by demonstrating assessment is of find the that constitutional claims district court debatable 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). In this case, the district court granted a certificate of appealability for on the issue of whether were McLean's properly two prior as convictions separate 4A1.2(a) aggravated under in assault U.S. of treated offenses (2007), Sentencing Amendment Guidelines 709 to the Manual federal light sentencing guidelines that revised this provision after McLean's sentencing. USSG Because Amendment 709 was not made retroactive, see and the assaults were properly treated as 1B1.10(c), 2 separate offenses under the prior guideline in effect at the time of sentencing, we affirm the district court's denial of relief on this claim. As to McLean's remaining claims, we have independently reviewed requisite the record and for conclude a that he has of not made the showing certificate appealability. Accordingly, we deny a certificate of appealability and dismiss the appeal as to these claims. We grant McLean's motion for We dispense counsel to withdraw, in which counsel acquiesces. 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. AFFIRMED IN PART; DISMISSED IN PART 3

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