United States v. Derrick Simmons ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7026
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:07-cr-00294-HMH-12; 7:16-cv-02004-HMH)
Submitted: November 22, 2016 Decided: December 2, 2016
Before WYNN, DIAZ, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Derrick Simmons, Appellant Pro Se. Andrew Burke Moorman,
William Jacob Watkins, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Simmons seeks to appeal the district court’s order
denying relief on his 28 U.S.C. § 2255 motion. The 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 leave to proceed in forma pauperis, deny 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 this court and argument would
not aid the decisional process.
DISMISSED
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