UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-6021

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JERRY ALLEN BAILEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Graham C. Mullen, Senior

District Judge. (CR-94-111; CA-05-505-3)

Submitted: June 21, 2006 Decided: July 5, 2006

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jerry Allen Bailey, Appellant Pro Se. Gretchen C. F. Shappert,

United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Bailey asserts on appeal that the district court should have

construed his claim under 28 U.S.C. § 2241 (2000). Because § 2255

has not been rendered inadequate to address Bailey’s claims, see In

Re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000), we conclude the

district court did not err in construing his petition as arising

under § 2255 rather than § 2241.

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PER CURIAM:

Jerry Allen Bailey, a federal prisoner, seeks to appeal

the district court’s order that construed his petition for a writ

of error coram nobis as a motion under 28 U.S.C. § 2255 (2000) and

dismissed it as a successive motion for which authorization had not

been obtained. We find 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, 125 S.

Ct. 2641, 2647 (2005) (when a motion is “in substance a successive

habeas petition,” it “should be treated accordingly”).1

Because Bailey’s petition 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 any assessment of his constitutional claims by the

district court is debatable or wrong and that any dispositive
2

To the extent Bailey’s petition is construed as a motion for

authorization to file a successive § 2255 motion, that claim fails,

as Bailey has failed to allege: (1) newly discovered evidence; or

(2) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable. 28 U.S.C. § 2255; see also United States v. Morris,

429 F.3d 65, 72 (4th Cir. 2005) (holding Booker is not

retroactively applicable to cases on collateral review).

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procedural ruling by the district court is likewise debatable. 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-

84 (4th Cir. 2001). We have independently reviewed the record and

conclude that Bailey has not made the requisite showing.2

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