Michael Alan Cruzen v. United States of America

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6347
MICHAEL ALAN CRUZEN,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (7:08-cv-00546-jlk-mfu)
Submitted: July 30, 2009 Decided: August 5, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Michael Alan Cruzen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Alan Cruzen, a federal prisoner, appeals the
district court’s order denying relief on his motion to void
judgment brought under Fed. R. Civ. P. 60(b) and 28 U.S.C.
§§ 1651, 2241 (2006). We have reviewed the record and find no
reversible error. Accordingly, we affirm the portion of the
district court’s order denying relief under Rule 60(b) and 28
U.S.C. §§ 1651, 2241 for the reasons stated by the district
court. See Cruzen v. United States, No. 7:08-cv-00546-jlk-mfu
(W.D. Va. Feb. 19, 2009).
To the extent the district court properly considered
Cruzen’s motion under 28 U.S.C.A. § 2255 (West Supp. 2009) and
dismissed it for lack of jurisdiction, we conclude a certificate
of appealability should not issue. The order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2006). 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)
(2006). 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);
2

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3
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Cruzen has
not made the requisite showing. Accordingly, we dismiss the
portion of the appeal construing Cruzen’s claims under 28
U.S.C.A. § 2255.
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.
AFFIRMED IN PART;
DISMISSED IN PART

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