United States v. Davis

305 F. App'x 998

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 16, 2009
• Docket: 08-7582
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7582

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOHN BENDER DAVIS, JR.,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:06-cr-00275-JAB-1; 1:08-cv-00031-JAB- RAE)

Submitted: January 13, 2009 Decided: January 16, 2009

Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

John Bender Davis, Jr., Appellant Pro Se. Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

John Bender Davis, Jr. seeks to appeal the district

court’s order accepting the recommendation of the magistrate

judge and denying relief on his 28 U.S.C. § 2255 (2000) motion.

The order is not appealable unless a circuit justice or judge

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)

(2000). 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) (2000). A prisoner satisfies this

standard by demonstrating that reasonable jurists would find

that any assessment of the constitutional claims by the district

court is debatable or wrong and that any dispositive procedural

ruling by the district court is likewise debatable. Miller-El

v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,

529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84

(4th Cir. 2001). We have independently reviewed the record and

conclude that Davis has not made the requisite showing.

Accordingly, we deny his motion for 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