United States v. Brian Foster ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6889
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRIAN LEE FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:08-cr-00087-FL-1; 5:11-cv-00439-FL)
Submitted: October 22, 2013 Decided: October 25, 2013
Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Brian Lee Foster, Appellant Pro Se. Eric David Goulian, OFFICE
OF THE UNITED STATES ATTORNEY, Rudolf A. Renfer, Jr., Stephen
Aubrey West, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Lee Foster seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on 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 Foster has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny Foster’s motion to
stay appellate proceedings as moot, 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 the
court and argument would not aid the decisional process.
DISMISSED
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