United States v. McCullough

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6353 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DENNIS SCOTT MCCULLOUGH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:06-cr-00389-REP-1; 3:08-cv-00308-REP) Submitted: July 22, 2010 Decided: August 2, 2010 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Dennis Scott McCullough, Appellant Pro Se. Angela Mastandrea-Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dennis McCullough seeks to appeal the district court’s orders denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2010) motion denying his Fed. R. Civ. P. 59(e) motion. The orders are 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 McCullough 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 2 before the court and argument would not aid the decisional process. DISMISSED 3