United States v. Clyde Gray, Jr. ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7443
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLYDE AUSTIN GRAY, JR., a/k/a Poochie,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:09-cr-00326-GBL-2)
Submitted: September 15, 2015 Decided: October 16, 2015
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Clyde Austin Gray, Jr., Appellant Pro Se. Dana James Boente,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clyde Austin Gray, Jr., seeks to appeal the district
court’s order denying his Fed. R. Civ. P. 60(b) motion in which
he sought reconsideration of the district court’s order denying
relief on his 28 U.S.C. § 2255 (2012) motion. We previously
placed this appeal in abeyance pending our decision in United
States v. McRae, No. 13-6878, in which this court addressed
whether an appeal from the dismissal of a Rule 60(b) motion as a
successive, unauthorized § 2255 motion is subject to the
certificate of appealability requirement. We have since held
that a certificate of appealability is not required in that
limited circumstance, but reaffirmed the holding in Reid v.
Angelone, 369 F.3d 363, 369 (4th Cir. 2004), that the issuance
of a certificate of appealability is a prerequisite to appellate
consideration of an appeal from the denial of a true Rule 60(b)
motion. United States v. McRae, 793 F.3d 392, 399-400 (4th Cir.
2015).
Thus, the district court’s order denying Gray’s Rule 60(b)
motion 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
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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
Gray has not made the requisite showing. Accordingly, we deny
Gray’s motion for appointment of counsel, 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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