Corbett v. Brooks | Court Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6360

GREGORY SCOTT CORBETT,

Petitioner - Appellant,

versus

JOSEPH BROOKS, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CA-03-514-3)

Submitted: July 30, 2004 Decided: August 23, 2004

Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Gregory Scott Corbett, Appellant Pro Se. Robert P. McIntosh, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gregory Scott Corbett seeks to appeal the district

court’s order construing his 28 U.S.C. § 2241 (2000) petition as a

successive 28 U.S.C. § 2255 (2000) motion and dismissing Corbett’s

action. Because the district court properly construed Corbett’s

action as a successive § 2255 motion, he may not appeal 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 363,

374 n.7 (4th Cir. 2004) (finding certificate of appealability

required even where district court lacked subject matter

jurisdiction). 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 (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 Corbett has not shown that the district court’s procedural

ruling that his § 2255 motion was successive was wrong or

debatable. Accordingly, we deny a certificate of appealability and

dismiss the appeal. We dispense with oral argument because the

- 2 - facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

DISMISSED

- 3 -

Opinions