                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-6860



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KENNETH DWAYNE LOCKLEAR,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:96-cr-00044-BR-1)


Submitted: August 31, 2006                 Decided: September 8, 2006


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kenneth Dwayne Locklear, Appellant Pro Se. Frank DeArmon Whitney,
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kenneth Dwayne Locklear seeks to appeal the district

court’s order construing his “place holder motion” as a 28 U.S.C.

§ 2255 (2000) motion and denying relief.                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 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); Rose v. Lee, 252 F.3d

676, 683-84 (4th Cir. 2001).         We have independently reviewed the

record and conclude that Locklear has not made the requisite

showing.*    Accordingly, we deny a certificate of appealability and




      *
      To the extent Locklear’s motion could have been construed as
a petition under 28 U.S.C. § 2241 (2000), relief would not be
warranted because the decision in United States v. Booker, 543 U.S.
220 (2005), is not retroactively applicable on collateral review.
See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).

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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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