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United States v. Carroll, 05-6163 (2005)

Court: Court of Appeals for the Fourth Circuit Number: 05-6163 Visitors: 68
Filed: Aug. 31, 2005
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-6163 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DAVID CARROLL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-94-519; CA-04-1279-1) Submitted: August 25, 2005 Decided: August 31, 2005 Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per c
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                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-6163



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


DAVID CARROLL,

                                                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CR-94-519; CA-04-1279-1)


Submitted:   August 25, 2005                 Decided:   August 31, 2005


Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


David Carroll, Appellant Pro Se. James L. Trump, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            David Carroll seeks to appeal the district court’s orders

dismissing as successive and untimely his motion under 28 U.S.C.

§ 2255 (2000), and denying his motion to alter or amend judgment

filed pursuant to Fed. R. Civ. P. 59(e).               The orders are not

appealable unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1) (2000); see Reid v.

Angelone, 
369 F.3d 368-69
, 374 n.7 (4th Cir. 2004).            A certificate

of appealability will not issue absent “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)

(2000).     A prisoner satisfies this standard by demonstrating that

reasonable jurists would find that his constitutional claims are

debatable and that any dispositive procedural rulings by the

district court are also debatable or wrong.              See 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 (4th Cir. 2001).

We have independently reviewed the record and conclude that Carroll

has   not   made    the   requisite   showing.    Accordingly,   we   deny   a

certificate of appealability and dismiss the appeal.

             Additionally, we construe Carroll’s notice of appeal and

informal brief on appeal as an application to file a second or

successive § 2255 motion. See United States v. Winestock, 
340 F.3d 200
, 208 (4th Cir. 2003).             We conclude that Carroll has not

satisfied     the     applicable      standards    necessary     to   obtain


                                      - 2 -
authorization under the statute. 28 U.S.C. § 2255; In re Williams,

330 F.3d 277
, 281-82 (4th Cir. 2003).   Accordingly, we decline to

authorize Carroll to file a successive § 2255 motion.   We dispense

with oral 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




                              - 3 -

Source:  CourtListener

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