United States of America v. United States, 423 F.2d 526, 528 & n.1 4th Cir. 1970

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EARNEST MCARN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Cameron McGowan Currie, District
Judge. (4:94-cr-00083-CMC-9; 4:06-cv-01597-CMC)
Submitted: October 31, 2006 Decided: November 6, 2006
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Earnest McArn, Appellant Pro Se. William Earl Day, II, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Earnest McArn seeks to appeal from the district court’s
order construing his motion for reduction of his sentence as a
motion under 28 U.S.C. § 2255 (2000), and denying relief because it
was a successive § 2255 motion for which authorization had not been
obtained. We find that the district court properly construed the
motion as one under § 2255. See Raines v. United States, 423 F.2d
526, 528 & n.1 (4th Cir. 1970); see also Gonzalez v. Crosby, 545
U.S. 524, ___, 125 S. Ct. 2641, 2647 (2005) (where a motion is “in
substance a successive habeas petition,” it “should be treated
accordingly”).
Because McArn’s motion was properly construed as a § 2255
motion, the order dismissing the motion is not appealable unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000); Jones v. Braxton, 392 F.3d 683 (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 the
district court’s assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural rulings by
the district court are likewise debatable. 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).

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We have independently reviewed the record and conclude that McArn
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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