United States of America v. Melvin B. Wilkerson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7541
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
versus
MELVIN B. WILKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (CA-02-217; CA-05-417-2)
Submitted: January 19, 2006 Decided: January 25, 2006
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Melvin B. Wilkerson, Appellant Pro Se. Laura Marie Everhart,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Melvin B. Wilkerson seeks to appeal the district court’s
order denying as untimely his motion filed under 28 U.S.C. § 2255
(2000). The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). 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
the district court’s assessment of his constitutional claims is
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
Wilkerson has not made the requisite showing. We note that
Wilkerson’s claim under United States v. Booker, 543 U.S. 220
(2005), fails. See United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005) (holding that Booker is not retroactively applicable to
cases on collateral review). Accordingly, we deny a certificate of
appealability 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

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