United States v. Edward McCain

Opinion

USCA4 Appeal: 22-7466 Doc: 10 Filed: 02/24/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7466

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EDWARD MCCAIN,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:09-cr-00296-DCN-2)

Submitted: February 21, 2023 Decided: February 24, 2023

Before NIEMEYER and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Edward McCain, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-7466 Doc: 10 Filed: 02/24/2023 Pg: 2 of 3

PER CURIAM:

Edward McCain appeals the district court’s order denying his self-styled motion for

release pending appeal filed in his pending 28 U.S.C. § 2255 proceeding that we treat as a

motion for release on bail pending adjudication of his § 2255 motion.

We may exercise jurisdiction only over final orders, 28 U.S.C. § 1291, and certain

interlocutory and collateral orders, 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b); Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949). We conclude that the district

court’s order is an appealable collateral order. See, e.g., Pagan v. United States, 353 F.3d

1343, 1345-46 & n.4 (11th Cir. 2003) (adopting rule and collecting cases).

A prisoner, however, still may not appeal a final order in a § 2255 proceeding unless

a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.

§ 2253(c)(1)(B). We conclude that this requirement applies, as well, to appealable

collateral orders in post-conviction proceedings subject to the certificate of appealability

requirement. See Jones v. Braxton, 392 F.3d 683, 686 (4th Cir. 2004); see also Pagan,

353 F.3d at 1346. 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

2 USCA4 Appeal: 22-7466 Doc: 10 Filed: 02/24/2023 Pg: 3 of 3

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 McCain has not made

the requisite showing. Accordingly, we deny McCain’s motion for judicial notice, 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