James Smith v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cv-00919 Copies to all parties and the district court/agency. [998780108]. Mailed to: James Preston Smith. [11-7366]

Appeal: 11-7366

Document: 8

Date Filed: 02/03/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7366

JAMES P. SMITH,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA; THE BATF,
Respondents - Appellees.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.
Irene C. Berger,
District Judge. (5:08-cv-00919)

Submitted:

January 31, 2012

Decided:

February 3, 2012

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James Preston Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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Document: 8

Date Filed: 02/03/2012

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PER CURIAM:
James P. Smith seeks to appeal the district court’s
order

accepting

the

recommendation

of

the

magistrate

judge,

construing his 28 U.S.C. § 2241 (2006) petition as a successive
28 U.S.C.A. § 2255 (West Supp. 2011) motion, and dismissing it
for lack of jurisdiction.

The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.
28

U.S.C.

§ 2253(c)(1)(B)

(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)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

district

that

court’s

assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).
denies

relief

demonstrate

on

both

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

must

ruling

is

debatable, and that the motion states a debatable claim of the
denial of a constitutional right.
We

have

independently

reviewed

the

Slack, 529 U.S. at 484-85.
record

Smith has not made the requisite showing.
a

certificate

dispense

with

of

appealability

oral

argument

and

2

conclude

that

Accordingly, we deny

dismiss

because

and

the

the

appeal.

facts

and

We
legal

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Date Filed: 02/03/2012

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

DISMISSED

3