United States v. Robert Phillips , 459 F. App'x 216 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7133
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT EDWARD PHILLIPS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:03-cr-00103-HCM-TEM-1)
Submitted: December 15, 2011 Decided: December 20, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Edward Phillips, Appellant Pro Se. Kevin Michael
Comstock, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Edward Phillips seeks to appeal the district
court’s order denying his second Fed. R. Civ. P. 60(b)(4) motion
for reconsideration of the district court’s order denying relief
on his 28 U.S.C.A. § 2255 (West Supp. 2011) 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 Phillips 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 contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
DISMISSED
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