United States v. Dewitt ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6751
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRBY GENE DEWITT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:04-cr-00795-TLW-4; 4:09-cv-70083-TLW)
Submitted: October 19, 2010 Decided: October 27, 2010
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Irby Gene Dewitt, Appellant Pro Se. Rose Mary Sheppard Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Irby Gene Dewitt seeks to appeal the district court’s
order denying construing his motions as motions for relief under
28 U.S.C.A. § 2255 (West Supp. 2010) and denying relief. The
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006).
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) (2006). 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 Dewitt has not made the requisite showing.
Accordingly, we 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
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before the court and argument would not aid the decisional
process.
DISMISSED
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