United States v. Michael Gallimore ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL PAUL GALLIMORE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00116-NCT-1;
1:11-cv-00850-NCT-JEP)
Submitted: April 16, 2015 Decided: April 21, 2015
Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Michael Paul Gallimore, Appellant Pro Se. John W. Stone, Jr.,
Acting United States Attorney, Robert Michael Hamilton, Harry L.
Hobgood, Angela Hewlett Miller, Assistant United States
Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Paul Gallimore seeks to appeal the district court’s
order adopting the recommendation of the magistrate judge and
granting in part and denying in part his 28 U.S.C. § 2255 (2012)
motion. Gallimore was convicted of conspiracy to distribute 500
grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(B), 846 (2012) (count one), and possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2012) (count three), and was sentenced
to 169 months’ imprisonment on count one and a concurrent term
of 120 months’ imprisonment on count three. In the § 2255
proceeding, the district court granted Gallimore relief on his
claim seeking vacatur of his conviction on count three * but
denied relief on the remainder of his claims, including his
request that the court hold a resentencing hearing with respect
to count one. Gallimore confines his appeal to the portion of
the district court’s order denying relief on his request for a
resentencing hearing with respect to count one.
*
The district court vacated Gallimore’s conviction on count
three after determining that it was invalid under
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc), dismissed the indictment as to this count, directed
the entry of a corrected judgment reflecting only Gallimore’s
conviction and sentence under count one, and directed that any
money paid by Gallimore toward the special assessment for count
three be returned to him or credited to any other debt he owed
the court.
2
This portion of the district court’s order denying § 2255
relief to Gallimore 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
Gallimore has not made the requisite showing. Accordingly, we
deny Gallimore’s motion for 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
3