United States v. Chester Downing ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7661
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHESTER EUGENE DOWNING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Fox,
Senior District Judge. (2:08-cr-00016-F-2; 2:11-cv-00057-F)
Submitted: February 19, 2014 Decided: February 25, 2014
Before KING and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Chester Eugene Downing, Appellant Pro Se. Jennifer P. May-
Parker, Assistant United States Attorney, Tobin Webb Lathan,
Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chester Eugene Downing seeks to appeal the district
court’s order construing his Motion to Dismiss Count Three as a
motion under 28 U.S.C. § 2255 (2012) and dismissing it as
successive. 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 Downing 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
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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