United States v. Damon Elliott ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMON EMANUEL ELLIOTT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:97-cr-00053-PJM-1; 8:15-cv-01892-PJM)
Submitted: October 15, 2015 Decided: October 20, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Damon Emanuel Elliott, Appellant Pro Se. Lindsay Eyler Kaplan,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damon Emanuel Elliott seeks to appeal the district court’s
order construing his “actual innocence” motion as a successive
28 U.S.C. § 2255 (2012) motion, and dismissing it on that basis.
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
Elliott has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny Elliott’s motion for
the appointment of counsel, and dismiss the appeal. We dispense
with oral argument because the facts and legal
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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