United States v. Dennis Bruton

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7175 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DENNIS LAMAR BRUTON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00013-MR-3; 1:12-cv-00123-MR) Submitted: January 15, 2015 Decided: January 20, 2015 Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Dennis Lamar Bruton, Appellant Pro Se. William Michael Miller, Assistant United States Attorney, Thomas A. O’Malley, OFFICE OF THE UNITED STATES ATTORNEY, Anne Magee Tompkins, United States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United States Attorney, Jill Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dennis Lamar Bruton 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 Bruton has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny Bruton’s motion to appoint counsel, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3