United States v. Curtis Sullivan

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 22, 2019
• Docket: 18-6391
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6391

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CURTIS SULLIVAN,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, District Judge. (8:13-cr-00241-TMC-1; 8:16-cv-01550- TMC)

Submitted: September 26, 2019 Decided: October 22, 2019

Before WILKINSON and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Curtis Sullivan, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Curtis Sullivan seeks to appeal the district court’s order denying relief on his 28

U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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) (2012). 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 Sullivan has not

made the requisite showing. Although the district court’s procedural conclusion regarding

timeliness of the § 2255 motion may be debatable in light of the recent decisions in United

States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Simms, 914 F.3d 229 (4th Cir.

2019) (en banc), petition for cert. filed, No. 18-1338 (U.S. Apr. 24, 2019), Sullivan has not

stated a debatable claim of the denial of a constitutional right. The predicate offenses

underlying Sullivan’s 18 U.S.C. § 924(c) (2012) convictions are substantive Hobbs Act

robbery convictions, which are categorically crimes of violence. United States v. Mathis,

932 F.3d 242, 265-66 (4th Cir. 2019). And although Sullivan was not convicted of Hobbs

Act robbery, he admitted to those robberies as the predicate offenses of his § 924(c)

2 convictions. See United States v. Nelson, 484 F.3d 257, 261 (4th Cir. 2007). 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