United States v. Nigel Clarke

Opinion

USCA4 Appeal: 23-6185 Doc: 5 Filed: 05/23/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6185

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NIGEL CLARKE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, District Judge. (4:02-cr-00060-FL-5; 4:10-cv-00195-H)

Submitted: May 18, 2023 Decided: May 23, 2023

Before NIEMEYER, RICHARDSON, and RUSHING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Nigel Clarke, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-6185 Doc: 5 Filed: 05/23/2023 Pg: 2 of 2

PER CURIAM:

Nigel Clarke seeks to appeal the district court’s order denying his Fed. R. Civ.

P. 60(b) motion for relief from the district court’s prior order dismissing his initial 28

U.S.C. § 2255 motion as time-barred and from the court’s December 2020 order denying

prior Rule 60(b) motions. The order is not appealable unless a circuit justice or judge issues

a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). See generally United States v.

McRae, 793 F.3d 392, 400 & n.7 (4th Cir. 2015). 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). When the district court denies relief on the merits, a prisoner satisfies this

standard by demonstrating that reasonable jurists could find the district court’s assessment

of the constitutional claims debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17

(2017). 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. Gonzalez v. Thaler, 565 U.S.

134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Clarke 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