UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7247
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ALLEN SMITH, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Frederick P. Stamp, Jr.,
Senior District Judge. (2:00-cr-00007-FPS-JES-1)
Submitted: November 18, 2014 Decided: November 21, 2014
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Richard Allen Smith, Jr., Appellant Pro Se. Stephen Donald
Warner, Assistant United States Attorney, Elkins, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Allen Smith, Jr., appeals the district court’s
order denying as untimely his Fed. R. Crim. P. 12(b)(3) motion,
construing that motion as a successive 28 U.S.C. § 2255 (2012)
motion, and dismissing it as unauthorized. To the extent that
Allen appeals the court’s denial of his Rule 12(b)(3) motion, we
confine our review to the issues raised in the Appellant’s
informal brief. See 4th Cir. R. 34(b). Because Allen does not
challenge in his informal brief the basis for the district
court’s disposition, he has forfeited appellate review of that
portion of the court’s order. Accordingly, we affirm the
district court order denying Smith’s Rule 12(b)(3) motion.
To the extent that Allen seeks to appeal the district
court’s order construing his motion as a successive and
unauthorized § 2255 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.
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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 Smith 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 before
this court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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