Michael Lynn Brown v. United States, 540 U.S. 375, 383 2003

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6290
MICHAEL LYNN BROWN,
Petitioner - Appellant,
versus
D. A. BRAXTON, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-04-417-7-JCT)
Submitted: August 31, 2005 Decided: September 14, 2005
Before KING, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Lynn Brown, Appellant Pro Se. William W. Muse, Assistant
Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Michael Lynn Brown, a state prisoner, seeks to appeal the
district court’s order construing his petition for writ of mandamus
as a petition filed under 28 U.S.C. § 2254 (2000), granting
Respondent’s motion to dismiss, and denying Brown relief.
The district court must give a prisoner notice and an
opportunity to respond before construing a mislabeled or unlabeled
post-conviction motion as an initial § 2254 petition. Castro v.
United States, 540 U.S. 375, 383 (2003); United States v. Emmanuel,
288 F.3d 644, 649 (4th Cir. 2002). Here, Brown was not entitled to
notice before the court construed his mandamus petition as a § 2254
petition because the instant action is not his first § 2254
petition.
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
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

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676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Brown has not made the requisite showing.
Accordingly, we deny Brown’s motion for 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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