US v. Claude Cooley

Filing 920090924

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7005

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLAUDE VANCE COOLEY, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Graham C. Mullen, Senior District Judge. (5:91-cr-00054-GCM-1; 5:09-cv-00049-GCM)

Submitted:

August 31, 2009

Decided:

September 24, 2009

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Claude Vance Cooley, 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Unpublished opinions are not binding precedent in this circuit.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: Claude Vance Cooley seeks to appeal the district

court's order construing his "Independent Equitable Action" as a successive 28 U.S.C.A. § 2255 (West Supp. 2009) motion, and

dismissing it on that basis. a circuit justice or

The order is not appealable unless judge issues a certificate of

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); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have

independently reviewed the record and conclude that the district court's construction of Cooley's action as a successive § 2255 motion is neither debatable nor wrong. argument (2003), on appeal, him Castro no v. United as its Contrary to Cooley's States, 540 U.S. of 375

affords

benefit

requirement

notice

before a pleading is construed as a § 2255 motion applies only to a pleading treated as the litigant's first § 2255 motion. Because Cooley had earlier pursued § 2255 relief, the pleading 2

recharacterized Cooley's

by

the § 2255

district motion. and

court

was

not

construed we deny

as a We

initial of

Accordingly, dismiss the the

certificate dispense

appealability oral argument

appeal. and

with

because

facts

legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED

3