Michael Cruzen v. US

Filing 920090805

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6347 MICHAEL ALAN CRUZEN, Petitioner - Appellant, v. UNITED STATES OF AMERICA, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (7:08-cv-00546-jlk-mfu) Submitted: July 30, 2009 Decided: August 5, 2009 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. Michael Alan Cruzen, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Alan Cruzen, a federal prisoner, appeals the district judgment court's brought order under denying Fed. R. relief Civ. on P. his 60(b) motion and 28 to void U.S.C. 1651, 2241 (2006). reversible error. We have reviewed the record and find no Accordingly, we affirm the portion of the district court's order denying relief under Rule 60(b) and 28 U.S.C. court. 1651, 2241 for the reasons stated by the district See Cruzen v. United States, No. 7:08-cv-00546-jlk-mfu (W.D. Va. Feb. 19, 2009). To the extent the district court properly considered Cruzen's motion under 28 U.S.C.A. 2255 (West Supp. 2009) and dismissed it for lack of jurisdiction, we conclude a certificate of appealability should not issue. unless a circuit justice or The order is not appealable issues a certificate of judge appealability. 28 U.S.C. 2253(c)(1) (2006). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2006). 28 U.S.C. 2253(c)(2) 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); 2 Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Cruzen has not made the requisite showing. portion of the appeal construing Accordingly, we dismiss the Cruzen's claims under 28 U.S.C.A. 2255. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED IN PART; DISMISSED IN PART 3

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