United States v. Jerry Modisette , 595 F. App'x 261 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7893
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY GLENDON MODISETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:07-cr-00069-BO-1; 7:12-cv-00061-BO)
Submitted: January 28, 2015 Decided: March 5, 2015
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Jerry Glendon Modisette, Appellant Pro Se. David A. Bragdon,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Glendon Modisette seeks to appeal 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 Modisette has not made the requisite showing. See
Whiteside v. United States, __ F.3d __, 2014 WL 7245453 (4th
Cir. Dec. 19, 2014) (en banc). Accordingly, we deny a
certificate of appealability, deny leave to proceed in forma
pauperis, deny Modisette’s motion for the appointment of
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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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