United States v. Floyd Powell

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-6985

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

FLOYD JUNIOR POWELL, a/k/a Dick,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:99-cr-00012-RLV-6; 5:14-cv-00094-
RLV)

Submitted: August 1, 2014 Decided: August 20, 2014

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Floyd Junior Powell, Appellant Pro Se. William A. Brafford,
Assistant United States Attorney, Craig Darren Randall, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina; Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Floyd Junior Powell seeks to appeal the district

court’s order treating his motion as a successive 28 U.S.C.

§ 2255 (2012) motion, and dismissing it on that basis. 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 Powell 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