United States v. Russell

432 F. App'x 273

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7655

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT PETER RUSSELL,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:91-cr-00056-AVB-1; 1:93-cv-01036-JCC)

Submitted: May 26, 2011 Decided: May 31, 2011

Before KING, SHEDD, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert Peter Russell, Appellant Pro Se. Michael Edward Rich, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Peter Russell seeks to appeal the district

court’s order denying his Fed. R. Civ. P. 60(d)(3) motion to

reopen judgment in his 28 U.S.C.A. § 2255 (West Supp. 2010)

proceedings, and a subsequent order denying his Fed. R. Civ. P.

59 motion to alter or amend judgment and his Fed. R. Civ. P.

60(b)(4) motion. The orders are 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 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 Russell has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal. We further deny Russell’s motion to remand the case

2 for an evidentiary hearing, and we dismiss as moot his motion to

expedite our decision on that motion. 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