United States v. Lennell Dyches

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7073
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENNELL DYCHES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Joseph F. Anderson, Jr., District
Judge. (8:06-cr-00136-JFA-1)
Submitted: November 2, 2012 Decided: November 6, 2012
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Lennell Dyches, Appellant Pro Se. Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lennell Dyches seeks to appeal the district court’s
order denying his self-styled motion to dismiss his criminal
case pursuant to Fed. R. Civ. P. 60(d). * Dyches has also filed
with this court a motion to withdraw his guilty plea. The order
as to which Dyches seeks review 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).
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,
*
To the extent that Dyches’ motion directly attacked his
convictions and sentence, it was, in essence, an unauthorized
and successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion over
which the district court lacked jurisdiction. See United States
v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).
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529 U.S. at 484–85. We have independently reviewed the record
and conclude that Dyches has not made the requisite showing.
Accordingly, we deny Dyches’ motion to withdraw his guilty plea,
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
3