United States v. Ritchey

427 F. App'x 260

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7518

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY WESLEY RITCHEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Robert G. Doumar, Senior District Judge. (4:07-cr-00009-RGD-JEB-1; 4:08-cv-00090-RGD; 4:10-cv-00019-RGD)

Submitted: April 26, 2011 Decided: May 4, 2011

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

Dismissed by unpublished per curiam opinion.

Gary Wesley Ritchey, Appellant Pro Se. Lisa Rae McKeel, Assistant United States Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary Wesley Ritchey seeks to appeal the district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West

Supp. 2010) motion. The denial of his § 2255 motion is 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 Ritchey 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

2 contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

DISMISSED