United States v. Andrew Smith ( 2022 )

USCA4 Appeal: 22-6221 Doc: 9 Filed: 08/23/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6221
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:14-cr-00082-RJC-DSC-1; 3:21-cv-
00659-RJC)
Submitted: August 18, 2022 Decided: August 23, 2022
Before WYNN, THACKER, and HEYTENS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Andrew Smith, Appellant Pro Se. Jeremy Raymond Sanders, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Andrew Smith seeks to appeal the district court’s order dismissing his 28 U.S.C.
§ 2255 motion as successive and unauthorized. ∗ The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). 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). When, as here, 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
Limiting our review of the record to the issues raised in Smith’s informal brief, we
conclude that Smith has not made the requisite showing. See 4th Cir. R. 34(b); see also
Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important
document; under Fourth Circuit rules, our review is limited to issues preserved in that
brief.”). Accordingly, we deny a certificate of appealability and dismiss the appeal.
∗
To the extent that Smith seeks to appeal the district court’s November 23, 2021,
order denying his initial § 2255 motion, we lack jurisdiction to review that order because
the notice of appeal was not timely filed within 60 days after entry of that order. See Fed.
R. App P. 4(a)(1)(B); Bowles v. Russell, 551 U.S. 205, 214 (2007) (holding that “timely
filing of a notice of appeal in a civil case is a jurisdictional requirement”).
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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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