United States v. Julius Nesbitt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6630
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JULIUS NESBITT, a/k/a Butch,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:08-cr-01153-DCN-1)
Submitted: July 23, 2015 Decided: July 28, 2015
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Julius Nesbitt, Appellant Pro Se. Emmanuel Joseph Ferguson, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julius Nesbitt seeks to appeal the district court’s order
denying his motion for release on bail pending review of his motion
filed under 28 U.S.C. § 2255 (2012). We may exercise jurisdiction
only over final orders, see 28 U.S.C. § 1291 (2012), and certain
interlocutory and collateral orders. See 28 U.S.C. § 1292 (2012);
Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949). The Supreme Court has long held that a pre-trial
order denying a motion to reduce bail in a criminal prosecution is
appealable as a collateral order. See Stack v. Boyle, 342 U.S. 1,
12 (1951). The majority of the circuits have extended the
collateral order doctrine to encompass an order denying a motion
for release on bail pending disposition of a habeas corpus petition
or a motion to vacate under 28 U.S.C. §§ 2254, 2255 (2012). See,
e.g., Pagan v. United States, 353 F.3d 1343, 1346 (11th Cir. 2003);
Dotson v. Clark, 900 F.2d 77, 78 (6th Cir. 1990); United States v.
Smith, 835 F.2d 1048, 1049 (3d Cir. 1987); Martin v. Solem, 801
F.2d 324, 328 (8th Cir. 1986); Guerra v. Meese, 786 F.2d 414, 418
(D.C.Cir. 1986); Cherek v. United States, 767 F.2d 335, 337 (7th
Cir. 1985); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981).
Following the reasoning of these decisions, we consider the
district court’s denial of Nesbitt’s motion to be a final order
under the collateral order doctrine.
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An appeal may not be taken from the final order in a § 2255
proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2012). A certificate
of appealability will not issue for claims addressed by a district
court absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find both that his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently
reviewed the record and conclude that Nesbitt 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 the court and argument would not
aid the decisional process.
DISMISSED
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