United States v. Anthony Smith

Opinion

USCA4 Appeal: 23-6436 Doc: 9 Filed: 10/03/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6436

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY DEPREE SMITH, a/k/a Straight,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:18-cr-00016-BO-1; 7:22-cv-00037- BO)

Submitted: September 28, 2023 Decided: October 3, 2023

Before NIEMEYER, THACKER, and RUSHING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Anthony Depree Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-6436 Doc: 9 Filed: 10/03/2023 Pg: 2 of 2

PER CURIAM:

Anthony Depree Smith seeks to appeal the district court’s order denying relief on

his counseled 28 U.S.C. § 2255 motion. The order is not appealable unless a circuit justice

or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). 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 could find the

district court’s assessment of the constitutional claims debatable or wrong. See Buck v.

Davis, 580 U.S. 100, 115-17 (2017). 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.

Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473,

484 (2000)).

We have independently reviewed the record and conclude that Smith 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 this court and argument would not aid the

decisional process.

DISMISSED

∗ We decline to consider the ineffective assistance of counsel claims related to Smith’s sentence that are raised for the first time on appeal. See In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014).