United States v. Terrell Mallard , 548 F. App'x 933 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7188
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRELL L. MALLARD, a/k/a Terrell Mailard,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00461-PMD-1; 2:12-cv-00718-PMD)
Submitted: December 16, 2013 Decided: December 23, 2013
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Terrell L. Mallard, Appellant Pro Se. Matthew J. Modica,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrell L. Mallard seeks to appeal the district
court’s order denying his Fed. R. Civ. P. 60(b) motion for
reconsideration * of the district court’s order denying relief on
his 28 U.S.C.A. § 2255 (West Supp. 2013) 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) (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 note that the motion was not a second or successive
§ 2255 motion, but instead a true Rule 60(b) motion.
Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005); United
States v. Winestock, 340 F.3d 200, 206-08 (4th Cir. 2003).
2
We have independently reviewed the record and conclude
that Mallard 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 before
this court and argument would not aid the decisional process.
DISMISSED
3