United States v. Edward McCain ( 2023 )

USCA4 Appeal: 22-7466 Doc: 10 Filed: 02/24/2023 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-7466
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD MCCAIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. David C. Norton, District Judge. (2:09-cr-00296-DCN-2)
Submitted: February 21, 2023 Decided: February 24, 2023
Before NIEMEYER and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Edward McCain, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 22-7466 Doc: 10 Filed: 02/24/2023 Pg: 2 of 3
PER CURIAM:
Edward McCain appeals the district court’s order denying his self-styled motion for
release pending appeal filed in his pending 28 U.S.C. § 2255 proceeding that we treat as a
motion for release on bail pending adjudication of his § 2255 motion.
We may exercise jurisdiction only over final orders, 28 U.S.C. § 1291, and certain
interlocutory and collateral orders, 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949). We conclude that the district
court’s order is an appealable collateral order. See, e.g., Pagan v. United States, 353 F.3d
1343, 1345-46 & n.4 (11th Cir. 2003) (adopting rule and collecting cases).
A prisoner, however, still may not appeal a final order in a § 2255 proceeding unless
a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(B). We conclude that this requirement applies, as well, to appealable
collateral orders in post-conviction proceedings subject to the certificate of appealability
requirement. See Jones v. Braxton, 392 F.3d 683, 686 (4th Cir. 2004); see also Pagan,
353 F.3d at 1346. 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). When the district court
denies relief on the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists could find the district court’s assessment of the constitutional claims
debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). 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
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the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that McCain has not made
the requisite showing. Accordingly, we deny McCain’s motion for judicial notice, 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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