United States v. Irby Dewitt , 502 F. App'x 257 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7466
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRBY GENE DEWITT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:04-cr-00795-TLW-4; 4:11-cv-70013-TLW)
Submitted: December 20, 2012 Decided: December 27, 2012
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Irby Gene Dewitt, Appellant Pro Se. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Irby Gene Dewitt seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp.
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) (2006). 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) (2006). 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 Dewitt 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
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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