United States v. Michael Davis | Court Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-6563

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

MICHAEL FREDDIE DAVIS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:07-cr-00320-TDS-1; 1:12-cv-00341-WO-JEP)

Submitted: August 24, 2017 Decided: August 29, 2017

Before GREGORY, Chief Judge, and SHEDD and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael Freddie Davis, Appellant Pro Se. Robert Michael Hamilton, Michael Francis Joseph, Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Michael Freddie Davis seeks to appeal the district court’s order accepting the

recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2255

(2012) motion. The order is not appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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) (2012). When the district court denies relief on the

merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would

find that the district court’s assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,

336-38 (2003). When the district court denies relief on procedural grounds, the prisoner

must demonstrate both that the dispositive procedural ruling is debatable, and that the

motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at

484-85.

We have independently reviewed the record and conclude that Davis 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 this court and argument would not aid the

decisional process.

DISMISSED

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