United States v. Deshawn Derr

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6503
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESHAWN EDWARD DERR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. James C. Cacheris, Senior District Judge. (1:11-cr-00517-JCC-1; 1:16-cv-
00663-JCC)
Submitted: August 12, 2019 Decided: August 19, 2019
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and SHEDD, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Deshawn Edward Derr, Appellant Pro Se. Daniel Taylor Young, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deshawn Edward Derr seeks to appeal the district court’s order denying relief on
his 28 U.S.C. § 2255 (2012) 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) (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 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 Derr has not made
the requisite showing. In his § 2255 motion, Derr claimed his 18 U.S.C. § 924(c) (2012)
conviction was obtained in violation of Johnson v. United States, 135 S. Ct. 2551 (2015).
The predicate offense for his § 924(c) conviction was Hobbs Act robbery committed on or
about June 17, 2011. In light of United States v. Mathis, No. 16-4633, __ F.3d __, 2019
WL 3437626, at *16 (4th Cir. July 31, 2019) (holding that “Hobbs Act robbery constitutes
a crime of violence under the force clause of Section 924(c)”), we conclude that Derr fails
to show his § 2255 motion states a valid claim of the denial of a constitutional right.
Accordingly, we deny a certificate of appealability, deny leave to proceed in forma
pauperis, deny the motion to appoint counsel, and dismiss the appeal. We dispense with
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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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