United States v. Summerville

429 F. App'x 352

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7531

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARLON BRADFORD SUMMERVILLE,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:03-cr-00462-JCC-2)

Submitted: May 3, 2011 Decided: May 20, 2011

Before TRAXLER, Chief Judge, and MOTZ and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Marlon Bradford Summerville, Appellant Pro Se. Lawrence Joseph Leiser, James L. Trump, Assistant United States Attorneys, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Marlon Bradford Summerville seeks to appeal the

district court’s order dismissing as untimely 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

Summerville 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