United States v. Holly Bennett

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6638

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

HOLLY NEIL BENNETT,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:08-cr-00078-IMK-JSK-2; 1:10-cv-00005-JMK-
JSK)

Submitted: July 21, 2011 Decided: July 26, 2011

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Holly Neil Bennett, Appellant Pro Se. Shawn Angus Morgan,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Holly Neil Bennett seeks to appeal the district

court’s order accepting the recommendation of the magistrate

judge and 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)(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 Bennett has not made the requisite showing.

Accordingly, we deny Bennett’s motion for a certificate of

appealability and dismiss the appeal. We dispense with oral

argument because the facts and legal contentions are adequately

2
presented in the materials before the court and argument would

not aid the decisional process.

DISMISSED