United States v. Phillip Drake , 590 F. App'x 267 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7363
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP LAMONT DRAKE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:09-cr-00950-TLW-3; 4:12-cv-03659-TLW)
Submitted: January 22, 2015 Decided: January 26, 2015
Before SHEDD, KEENAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Phillip Lamont Drake, Appellant Pro Se. Carrie Fisher Sherard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Lamont Drake seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2255 (2012)
motion, and has filed motions for appointment of counsel, to
place his appeal in abeyance, and for leave to file a
supplemental informal brief. 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 Drake has not made the requisite showing. Accordingly, we
grant Drake’s motion for leave to file a supplemental informal
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brief, deny as moot his motion to place his appeal in abeyance,
deny his motion for appointment of counsel, 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 before this court and argument would
not aid the decisional process.
DISMISSED
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