United States v. Gideon Melvin

507 F. App'x 292

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 24, 2013
• Docket: 12-7489
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-7489

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GIDEON X. MELVIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:00-cr-00110-F-1; 7:12-cv-00149-F)

Submitted: January 22, 2013 Decided: January 24, 2013

Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Gideon X. Melvin, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gideon X. Melvin seeks to appeal the district court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 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) (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 Melvin has not made the requisite showing. See United

States v. Powell, 649 F.3d 554 (4th Cir. 2012) (holding that

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), and United

States v. Simmons, 649 F.3d 237, 241-45 (4th Cir. 2011), do not

apply retroactively to cases on collateral review).

2 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