United States v. Merritt , 203 F. App'x 468 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7085
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID J. MERRITT,
Defendant - Appellant.
No. 06-7086
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID J. MERRITT,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:97-cr-00043; 4:01-cv-00016; 4:98-cr-00006;
4:01-cv-00015)
Submitted: October 17, 2006 Decided: October 23, 2006
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
David J. Merritt, Appellant Pro Se. Michael R. Smythers, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
David J. Merritt seeks to appeal the district court’s
orders denying relief on his 28 U.S.C. § 2255 (2000) and 18 U.S.C.
§ 3582(c)(2) (2000) motions and his motions for reconsideration of
the denial of his § 2255 motion. Because the motions sought to
attack sentences in two criminal proceedings, the district court
recorded the motions in two separate cases, but dealt with them in
an identical manner. The district court docketed Merritt’s notice
of appeal in both cases, and the two appeals from identical
district court orders have been consolidated in this court.
The orders denying the § 2255 motion and the motions for
reconsideration are not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Merritt has not
- 3 -
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss this portion of the appeals.
Regarding the denial of Merritt’s § 3582 motion, we have
reviewed the record and found no reversible error. Accordingly, we
affirm the relevant portion of the district court’s order for the
reasons stated by the district court. United States v. Merritt,
No. 4:97-cr-00043; 4:01-cv-00016; 4:98-cr-0006; 4:01-cv-00015 (E.D.
Va. Mar. 22 & Apr. 27, 2006). We deny Merritt’s motion for
appointment of counsel. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
- 4 -