United States v. Nigel Clarke ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7616
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NIGEL CLARKE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:02-cr-00060-H-5; 4:10-cv-00195-H)
Submitted: September 28, 2015 Decided: October 8, 2015
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Nigel Clarke, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Michael Gordon James, Kimberly
Ann Moore, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nigel Clarke seeks to appeal the district court’s order
denying his Fed. R. Civ. P. 60(b) motion to vacate the district
court’s order 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
Clarke 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
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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