US v. Eddie McLean
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
April 16, 2009
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Affirmed in part; dismissed in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
constitutional prisoner reasonable
2253(c)(2) by any
this would by
demonstrating assessment is of
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
Guidelines 709 to the
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
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
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
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