United States v. David Smith, Jr.

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-7067


UNITED STATES OF AMERICA,

                       Plaintiff – Appellee,

          v.

DAVID WAYNE SMITH, JR.,

                       Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.      Glen E. Conrad, Chief
District Judge.   (7:07-cr-00070-GEC-RSB-1; 7:14-cv-80707-JCT-
RSB)


Submitted:   November 18, 2014            Decided:   November 21, 2014


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Wayne Smith, Jr., Appellant Pro Se. Ronald Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David Wayne Smith, Jr., seeks to appeal the district

court’s order dismissing as untimely 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 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




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contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                               DISMISSED




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