United States v. Gary May

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-6252

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

GARY MAY,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:12-cr-00050-1; 5:13-cv-22417)

Submitted: June 30, 2014 Decided: July 15, 2014

Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Gary May, Appellant Pro Se. Steven Robert Ruby, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary May seeks to appeal the district court’s order

accepting the recommendation of the magistrate judge and denying

relief on his 28 U.S.C. § 2255 (2012) 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) (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

(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 May 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

this court and argument would not aid the decisional process.

DISMISSED