United States v. McElveen

523 F. App'x 244

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 5, 2013
• Docket: No. 13-6428
• Status: Published

Opinion

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Lamont Alvin McElveen 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 ap-pealability 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that McElveen 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 before this court and argument would not aid the decisional process.

DISMISSED.

McElveen previously was denied relief under 28 U.S.C. § 2255. Because he did not obtain pre-filing authorization from this court to file the motion at issue in this appeal, that motion is unauthorized and successive, and the district court lacked jurisdiction to consider it. See 28 U.S.C. § 2255(h); United States v. Winestock, 340 F.3d 200, 204-05 (4th Cir.2003) (describing procedural requirements to file successive applications for collateral review). In any event, were we to consider McElveen's claim on the merits, we would conclude without difficulty that McElveen has demonstrated no debatable ground for relief.