                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6663



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KEVIN ISHMEAL POLK,

                                             Defendant - Appellant.




Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-02-22; CA-03-264)


Submitted:   December 22, 2005            Decided: December 29, 2005


Before WIDENER, NIEMEYER, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kevin Ishmeal Polk, Appellant Pro Se. Thomas Richard Ascik, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Kevin Polk, a federal prisoner, seeks to appeal the

district court’s order denying relief on his 28 U.S.C. § 2255

(2000) motion.    An appeal may not be taken from the final order in

a habeas corpus proceeding 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 the district

court’s assessment of his constitutional claims is 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 Polk has not made the

requisite showing.     On appeal, Polk challenges only his sentence

based on the holding in United States v. Booker, 543 U.S. 220

(2005).   This issue was raised for the first time on appeal and

this court has recently held that Booker is not retroactively

applicable to cases on collateral review. United States v. Morris,

2005 WL 2950732 (4th Cir. Nov. 7, 2005).         Accordingly, we deny

Polk’s motion to proceed in forma pauperis and deny a certificate

of appealability and dismiss the appeal.        We dispense with oral


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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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