United States of America v. Herbert Smart

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7643
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HERBERT SMART,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (2:97-cr-00025-RAJ)
Submitted: November 15, 2006 Decided: November 27, 2006
Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Herbert Smart, 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Unpublished opinions are not binding precedent in this circuit.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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*To the extent Smart seeks authorization under 28 U.S.C.
§ 2244 (2000), to file a second or successive motion, we deny
relief.
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PER CURIAM:
Herbert Smart seeks to appeal the district court’s order
denying relief on his 28 U.S.C. § 2255 (2000) motion. 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 any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. 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, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude Smart has not made
the requisite showing. 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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