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  • Johnson v. Brooks, 4th Cir. (2004)

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    1) James Lamont Johnson filed a petition under 28 U.S.C. 2241 attacking his conviction. The district court construed it as a motion under 28 U.S.C. 2255 and transferred it to the appropriate district court. 2) The Fourth Circuit held that Johnson's claims did not fit within the savings clause of 2255, so the district court properly treated it as a 2255 motion. 3) The Fourth Circuit denied a certificate of appealability, finding that Johnson did not make the requisite substantial showing of the denial of a constitutional right. It therefore dismissed the appeal.

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    Filed: 2004-12-09 Precedential Status: Non-Precedential Docket: 04-7014

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    1) James Lamont Johnson filed a petition under 28 U.S.C. 2241 attacking his conviction. The district court construed it as a motion under 28 U.S.C. 2255 and transferred it to the appropriate district court. 2) The Fourth Circuit held that Johnson's claims did not fit within the savings clause of 2255, so the district court properly treated it as a 2255 motion. 3) The Fourth Circuit denied a certificate of appealability, finding that Johnson did not make the requisite substantial showing of the denial of a constitutional right. It therefore dismissed the appeal.

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    Johnson v. Brooks, 4th Cir. (2004)

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    1) James Lamont Johnson filed a petition under 28 U.S.C. 2241 attacking his conviction. The district court construed it as a motion under 28 U.S.C. 2255 and transferred it to the appropriate district court. 2) The Fourth Circuit held that Johnson's claims did not fit within the savings clause of 2255, so the district court properly treated it as a 2255 motion. 3) The Fourth Circuit denied a certificate of appealability, finding that Johnson did not make the requisite substantial showing of the denial of a constitutional right. It therefore dismissed the appeal.

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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-7014

    JAMES LAMONT JOHNSON,


    Petitioner - Appellant,
    versus
    JOSEPH M. BROOKS, Warden, FCI Petersburg,
    Respondent - Appellee.

    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria. Leonie M. Brinkema, District
    Judge. (CA-04-560)

    Submitted:

    November 19, 2004

    Decided:

    December 9, 2004

    Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior


    Circuit Judge.

    Dismissed by unpublished per curiam opinion.

    James Lamont Johnson, Appellant Pro Se.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    James Lamont Johnson seeks to appeal from the district
    courts order construing his 28 U.S.C. 2241 (2000) petition as a
    28 U.S.C. 2255 (2000) motion and transferring it to the Middle
    District of North Carolina. Because Johnsons claims attacking his
    conviction do not fit within the savings clause of 2255, we hold
    that the district court properly found that Johnsons motion could
    only be considered under 2255.

    Thus, the transfer 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 or her 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 676, 683 (4th Cir. 2001).
    We have independently reviewed the record and conclude that Johnson
    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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