United States v. Freeman

390 F. App'x 248

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6434

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOHNEY FREEMAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:88-cr-00076-jcc-2)

Submitted: July 27, 2010 Decided: August 5, 2010

Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Johney Freemen, Appellant Pro Se. Robert Joseph Seidel, Jr., Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Johney Freeman seeks to appeal the district court’s

order denying his “Motion to Correct Illegal Sentence” as a

successive motion under 28 U.S.C.A. § 2255 (West Supp. 2010).

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 Freeman 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