United States v. Alton Benn ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6639
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALTON BENN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:11-cr-00127-TDS-2; 1:15-
cv-00760-TDS-LPA)
Submitted: March 26, 2021 Decided: April 13, 2021
Before AGEE, DIAZ, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Alton Benn, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alton Benn seeks to appeal the district court’s order accepting the recommendation
of the magistrate judge, following an evidentiary hearing, and denying relief on Benn’s 28
U.S.C. § 2255 motion. 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 the district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists could find the district court’s
assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct.
759, 773-74 (2017). 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. Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Benn has not made
the requisite showing. Benn has not established that counsel was ineffective based on
allegations that he briefly nodded off during trial or that he failed to impeach witnesses;
Benn’s claim regarding counsel’s failure to object to the use of the 2011 Sentencing
Guidelines Manual was not raised in a timely manner. Accordingly, we deny Benn’s
motion for a certificate of appealability; deny Benn’s motions for production of documents,
transcripts, and grand jury records; and dismiss the appeal. We dispense with oral
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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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