US v. Richard Orr

Filing 920091008

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7263

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD A. ORR, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:00-cr-10067-jpj-mfu-1; 2:09-cv-80167-jpjmfu)

Submitted:

September 29, 2009

Decided:

October 8, 2009

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Richard A. Orr, Appellant Pro Se. Assistant United States Attorney, Appellee.

Steven Randall Ramseyer, Abingdon, Virginia, for

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Richard A. Orr appeals the district court's order

treating his petition for writ of audita querela as a successive 28 U.S.C.A. § 2255 (West Supp. 2009) motion and dismissing it on that basis. or The judge order issues is a not appealable of unless a circuit 28

justice

certificate

appealability.

U.S.C. § 2253(c)(1) (2006). not issue absent "a

A certificate of appealability will showing of the denial (2006). of a A that the or

substantial 28

constitutional prisoner reasonable

right." this would by

U.S.C. standard

§ 2253(c)(2) by any

satisfies jurists

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). We have

independently reviewed the record and conclude that Orr has not made the requisite showing. Accordingly, we deny a certificate We dispense with oral

of appealability and dismiss the appeal.

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

2