US v. Henry Miller

Filing 920100317

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6108

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HENRY EARL MILLER, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:04-cr-00022-HFF-3)

Submitted:

March 16, 2010

Decided:

March 17, 2010

Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Henry Earl Miller, Appellant Pro Se. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: In February 2006, Henry Earl Miller filed in the

district court a letter challenging his conviction and 300-month sentence imposed following his guilty plea to armed robbery, using and carrying a firearm during a crime of violence, and aiding and abetting in these offenses. The district court

properly characterized this letter as a 28 U.S.C.A. § 2255 (West 2006 & Supp. 2009) motion, and ultimately denied relief. Miller

has since filed numerous motions in the district court seeking to reinstate his ability to file a § 2255 motion. In this appeal, Miller seeks to appeal the district court's unwarned text order denying his motions: unlabeled (1) "to amend (2) the "for

recharacterized

3-page

letter;"

written order setting forth defendant's `offense conduct' for which he was sentenced and punished under aiding and abetting 18 U.S.C. § 2113(d) [(2006)];" (3) "for written order setting forth defendant's `offense conduct' for which he was sentenced and punished under aiding and abetting 18 [U.S.C.A.] § 924(c) [(West 2006 & Supp. 2009)];" (4) "for court to honor and uphold the Fifth Amendment's Double Jeopardy Clause;" (5) "to be informed if defendant had not finally plead (sic) guilty to the bogus 18 U.S.C. § 924(c) charges would he still be waiting and rotting in county jail for his jury trial;" (6) "to be informed why this court allowed defendant's counsel David W. Plowden to exit the 2

courtroom

during

Miller's

sentencing

proceedings

and

what

purpose did such a stunt serve;" (7) "for clarification of the purpose of 28 U.S.C. § 2241(c)(3) [(2006)]"; (8) "for court to comply with the 4th Circuit Court of Appeals['] instruction to make an appropriate disposition on petitioner's 28 U.S.C. § 2241 motion;" (9) "for leave of court to amend the unwarned

recharacterized letter or to file a legally first § 2255 motion on the basis of stare decisis;" (10) "for issuance of a show cause order;" and (11) "for immediate release on the basis of the Double Jeopardy Clause violation." This order is not appealable unless a circuit justice or judge 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." this would by

U.S.C. standard

2253(c)(2) by any

(2006).

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 Miller has not made the requisite showing. 3 Accordingly, we deny Miller's

motion appeal. legal before

for

a

certificate

of

appealability

and

dismiss

the

We dispense with oral argument because the facts and are and adequately argument presented not in the the materials decisional

contentions the court

would

aid

process. DISMISSED

4