United States v. Charles Torian , 614 F. App'x 663 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6738
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES LEE TORIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, Senior
District Judge. (4:01-cr-70057-NKM-1; 4:15-cv-80813-NKM-RSB)
Submitted: August 20, 2015 Decided: August 25, 2015
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Charles Lee Torian, Appellant Pro Se. Donald Ray Wolthuis,
Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Lee Torian seeks to appeal the district court’s
order construing his motion to correct a clerical error as a
successive 28 U.S.C. § 2255 (2012) motion and denying it on that
basis. 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
Torian 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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