United States v. Gullett

ON PETITION FOR REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7720
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNY R. GULLETT,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-94-17, CA-97-456-2)
Submitted: June 5, 2003 Decided: June 25, 2003
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Cheryl Johns Sturm, Chadds Ford, Pennsylvania, for Appellant.
Michael Lee Keller, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Denny R. Gullett was convicted following a jury trial of one
count of maliciously damaging and destroying and attempting to
damage and destroy by means of an explosive a building used in
interstate commerce that resulted in death in violation of 18
U.S.C. § 844(i) (2000). Gullett was sentenced to thirty-eight years
in prison and five years of supervised release. Gullett filed a 28
U.S.C. § 2255 (2000) motion to vacate his sentence. The magistrate
judge recommended dismissal of Gullett’s claims. Following an
evidentiary hearing on the issue of whether there had been improper
contact during trial between a juror and the prosecution and a
prosecution witness, the district court denied the motion.
An order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000). 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) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find 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, 123 S. Ct. 1029, 1040 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir.), cert. denied, 534 U.S. 941 (2001). We have
independently reviewed the record and conclude that Gullett has not
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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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