United States v. Larry Antonio Simmons , 704 F. App'x 275 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6962
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY ANTONIO SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Patrick Michael Duffy, Senior District Judge. (2:10-cr-00653-PMD-1)
Submitted: November 21, 2017 Decided: November 28, 2017
Before WYNN and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Larry Antonio Simmons, Appellant Pro Se. Robert Nicholas Bianchi, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Antonio Simmons seeks to appeal the district court’s order construing
Simmons’ “motion to be resentenced without the [21 U.S.C. §] 851 [(2012)]
enhancement” as a 28 U.S.C. § 2255 (2012) motion and dismissing it as a second or
successive § 2255 motion filed without authorization. We conclude that the district court
correctly determined that Simmons’ motion was in substance a successive § 2255 motion.
The district court’s 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 Simmons 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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