United States v. Ferguson ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6349
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DWAYNE FERGUSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:04-cr-00013-REP-1; 3:09-cv-00700-REP)
Submitted: May 19, 2011 Decided: May 24, 2011
Before TRAXLER, Chief Judge, and AGEE and KEENAN, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Dwayne Ferguson, Appellant Pro Se. Olivia L. Norman, OFFICE OF
THE UNITED STATES ATTORNEY, Stephen David Schiller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Ferguson seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp.
2010) motion. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (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 Ferguson has not made the requisite showing.
Accordingly, we deny Ferguson’s motion for a certificate of
appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED
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