United States v. Garland

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8206
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY BEVERLY GARLAND,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cv-00240-HEH; 3:05-cr-00263-HEH-1)
Submitted: July 27, 2010 Decided: August 4, 2010
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Larry Beverly Garland, Appellant Pro Se. Angela Mastandrea-
Miller, Stephen Wiley Miller, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Beverly Garland seeks to appeal the district
court’s order dismissing as untimely his 28 U.S.C.A. § 2255(West Supp. 2010) motion. 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 Garland has not made the requisite showing.
Accordingly, we deny a certificate of appealability, deny leave
to proceed in forma pauperis, and dismiss the appeal. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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