United States v. Spence

385 F. App'x 313

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6040

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

WILLIAM GILBERT SPENCE, JR.,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:07-cr-00045-sgw-mfu-2; 5:09-cv-80173-sgw- mfu)

Submitted: June 17, 2010 Decided: June 25, 2010

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

Dismissed by unpublished per curiam opinion.

William Gilbert Spence, Jr., Appellant Pro Se. Jeb Thomas Terrien, Assistant United States Attorney, Harrisonburg, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

William Gilbert Spence, Jr., seeks to appeal the

district court’s 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). 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 Spence 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

2 and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

DISMISSED