United States v. Braddy

421 F. App'x 276

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7462

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS MONIQUE BRADDY, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, District Judge. (4:07-cr-00048-RBS-TEM-1)

Submitted: March 31, 2011 Decided: April 5, 2011

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas Monique Braddy, Jr., Appellant Pro Se. Howard Jacob Zlotnick, Assistant United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Thomas Monique Braddy, Jr., appeals the district

court’s order construing his “Motion for Rescission of Plea

Contract” as an unauthorized successive 28 U.S.C.A. § 2255 (West

Supp. 2010) motion and dismissing it on that basis. 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) (2006). 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 and

conclude that Braddy 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

2 before the court and argument would not aid the decisional

process.

DISMISSED