United States v. David Simpson

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-7823


UNITED STATES OF AMERICA,

                        Plaintiff - Appellee,

          v.

DAVID K. SIMPSON,

                        Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Cameron McGowan Currie, Senior
District Judge. (3:04-cr-00074-CMC-1; 3:13-cv-02684-CMC)


Submitted:   January 23, 2014              Decided:   January 28, 2014


Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


David K. Simpson, Appellant Pro Se.    Robert Frank Daley, Jr.,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              David K. Simpson seeks to appeal the district court’s

order denying his Fed. R. Civ. P. 59(e) motion to alter or amend

the court’s prior order dismissing his 28 U.S.C. § 2255 (2012)

motion as successive.           The orders are not appealable unless a

circuit justice or judge issues a certificate of appealability.

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).

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 Simpson has not made the requisite showing.                     Accordingly,

we deny a certificate of appealability, deny leave to proceed in

forma pauperis, and dismiss the appeal.                 We dispense with oral

argument because the facts and legal contentions are adequately

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presented in the materials before this court and argument would

not aid the decisional process.



                                                      DISMISSED




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