United States v. Larry Lingenfelter

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6110

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LARRY EUGENE LINGENFELTER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:10-cr-00153-RAJ-TEM-1; 2:14-cv- 00575-RAJ)

Submitted: July 24, 2018 Decided: August 6, 2018

Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant. Stephen Westley Haynie, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Larry Eugene Lingenfelter 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 Lingenfelter 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

* We vacated the district court’s first order denying Lingenfelter’s § 2255 motion as untimely. United States v. Lingenfelter, 685 F. App’x 253 (4th Cir. 2017). On remand, the district court conducted an evidentiary hearing and resolved the motion on the merits.

2 contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

DISMISSED