United States v. Hakim Rashid ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6970
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAKIM ABDULAH RASHID, a/k/a Rodney Buchanan,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cr-00941-RBH-1; 4:13-cv-01298-RBH)
Submitted: October 17, 2013 Decided: November 19, 2013
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Hakim Abdulah Rashid, Appellant Pro Se. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hakim Abdulah Rashid seeks to appeal the district
court’s order dismissing without prejudice as premature his 28
U.S.C.A. § 2255 (West Supp. 2013) 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 Rashid has not made the requisite showing. Although the
district court erroneously concluded that it lacked jurisdiction
to consider Rashid’s § 2255 motion, see United States v. Prows,
448 F.3d 1223, 1228-29 (10th Cir. 2006) (collecting cases), the
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district court correctly found, in the alternative, that the
resolution of Rashid’s § 2255 motion was premature due to the
pendency of Rashid’s direct appeal. Rashid may refile his
§ 2255 motion now that his direct appeal has concluded.
Accordingly, we deny a certificate of appealability, deny
Rashid’s motion to appoint counsel, 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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