United States of America v. Winestock, 340 F.3d 200, 207 4th Cir. 2003 . To appeal an

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7094
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DION THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:00-cr-00176-F; 5:04-cv-00864)
Submitted: October 15, 2007 Decided: November 8, 2007
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Dion Thomas, Appellant Pro Se. Thomas B. Murphy, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

- 2 -
PER CURIAM:
Dion Thomas seeks to appeal the district court’s order
denying relief on his motion filed under Fed. R. Civ. P. 60(b)(4),
(6). Because Thomas’s motion did not directly attack his
conviction or sentence, but rather asserted a defect in the
collateral review process itself, it constituted a true Rule 60(b)
motion under United States v. Winestock, 340 F.3d 200, 207 (4th
Cir. 2003). To appeal an order denying a Rule 60(b) motion in a
habeas action, Thomas must establish entitlement to a certificate
of appealability. See Reid v. Angelone, 369 F.3d 363, 368 (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 (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
Thomas has not made the requisite showing for a certificate of
appealability. Accordingly, we deny his motion to hold his
informal brief in abeyance, deny a certificate of appealability,

-- 2 of 3 --

- 3 -
and dismiss the appeal. 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 of 3 --