United States v. Eric Whitener ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6818
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC LAMOUNT WHITENER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:90-cr-00085-MOC-3; 3:14-cv-00600-MOC)
Submitted: December 15, 2016 Decided: December 19, 2016
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Eric Lamount Whitener, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Lamount Whitener seeks to appeal the district court’s
order granting his motion for reconsideration of a prior order
dismissing his 28 U.S.C. § 2255 (2012) motion as time-barred;
denying his motion for recusal; denying his motion for
reconsideration of a prior order denying his objection to the
Government’s untimely filings; and ultimately denying relief on
his § 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
Whitener has not made the requisite showing. Accordingly, we
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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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