United States v. McCullough

389 F. App'x 215

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 2, 2010
• Docket: 10-6353
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6353

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DENNIS SCOTT MCCULLOUGH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:06-cr-00389-REP-1; 3:08-cv-00308-REP)

Submitted: July 22, 2010 Decided: August 2, 2010

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Dennis Scott McCullough, Appellant Pro Se. Angela Mastandrea-Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Dennis McCullough seeks to appeal the district court’s

orders denying relief on his 28 U.S.C.A. § 2255 (West Supp.

2010) motion denying his Fed. R. Civ. P. 59(e) motion. The

orders are 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 McCullough 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