United States v. Anderson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8205
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN DAVID ANDERSON, JR.,
Defendant – Appellant.
No. 10-6721
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN DAVID ANDERSON, JR.,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:00-cr-00033-BEL-1; 1:07-cv-00234-BEL)
Submitted: March 28, 2011 Decided: April 8, 2011
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
John David Anderson, Jr., Appellant Pro Se. Martin Joseph
Clarke, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
John David Anderson, Jr., seeks to appeal the district
court’s orders from November 2009 * and May 2010 denying relief on
his 28 U.S.C.A. § 2255 (West Supp. 2010) motion. With respect
to the November 2009 order, 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). 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
*
Anderson’s appeal from the November 2009 order was
interlocutory when filed. The district court’s subsequent entry
of a final judgment permits review of the order under the
doctrine of cumulative finality. See In re Bryson, 406 F.3d
284, 287-89 (4th Cir. 2005); Equip. Fin. Group, Inc. v. Traverse
Computer Brokers, 973 F.2d 345, 347 (4th Cir. 1992).
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and conclude that Anderson has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal in part.
With respect to the May 2010 order, which denied
relief after an evidentiary hearing, it is Anderson’s burden to
include in the record on appeal a transcript of all parts of the
proceedings material to the issues raised on appeal. See Fed.
R. App. P. 10(b); 4th Cir. R. 10(b). Although the district
court granted Anderson a transcript at government expense, he
failed to produce the entirety of that transcript. By failing
to produce a transcript, Anderson has waived review of the
issues on appeal that depend on the transcript to show error.
See Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992)
(per curiam); Keller v. Prince George’s Cnty., 827 F.2d 952, 954
n.1 (4th Cir. 1987). As no error appears on the record before
us, we affirm the district court’s order as to the claim upon
which a certificate of appealability was granted, and deny a
certificate of appealability and dismiss as to the remaining
claim. 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 IN PART;
AFFIRMED IN PART
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