United States v. Puzey

393 F. App'x 129

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7936

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL PAUL PUZEY, a/k/a Big Pete,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:00-cr-00057-JPB-JES-16; 3:04-cv-00063- JPB-JES)

Submitted: August 26, 2010 Decided: August 31, 2010

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Michael Paul Puzey, Appellant Pro Se. Thomas Oliver Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Paul Puzey seeks to appeal the district

court’s order accepting the recommendation of the magistrate

judge and denying his Fed. R. Civ. P. 60(b) motion for

reconsideration of a prior order denying relief on his 28

U.S.C.A. § 2255 (West Supp. 2010) motion. The order is not

appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);

Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).

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 Puzey has not made the requisite showing.

Accordingly, we deny Puzey’s motion for appointment of counsel,

2 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 the

court and argument would not aid the decisional process.

DISMISSED