United States v. Vernon Collins

672 F. App'x 302

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 5, 2017
• Docket: 16-7145
• Status: Unpublished

Opinion

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Vernon A. Collins seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion. * The order is not appealable unless a circuit jus tice or judge issues a certificate of appeal-ability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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) (2012). 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Collins 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 contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

, DISMISSED

* Although Collins insists that the district court improperly construed his motion as a § 2255 motion rather than a former Fed. R. Crim. P. 35(a) motion, we conclude that Collins' substantive claim is not cognizable under former Rule 35(a), and therefore, the district court’s construction of the motion was not erroneous. See United States v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992).