UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6212
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR ALEXANDER HOLT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cr-00002-D-1; 5:12-cv-00075-D)
Submitted: May 13, 2015 Decided: May 18, 2015
Before SHEDD, DIAZ, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Victor Alexander Holt, Appellant Pro Se. Kristine L. Fritz,
OFFICE OF THE UNITED STATES ATTORNEY, Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Alexander Holt seeks to appeal the district court’s
order 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.
As the lone issue presented in this appeal is squarely
foreclosed by our recent decision in United States v. Foote, __
F.3d __, 2015 WL 1883538 (4th Cir. Apr. 27, 2015), we conclude
that Holt has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny Holt’s motions for
appointment of counsel, and dismiss the appeal. We also deny
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Holt’s motion for relief pursuant to the panel decision in
Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014), which
has been superseded by the opinion of the en banc court, see
Whiteside v. United States, 775 F.3d 180 (4th Cir. 2014), and
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), because
a Simmons-based challenge to a federal prisoner’s sentence is
not cognizable in a § 2255 proceeding. See Foote, 2015 WL
1883538, at *1, *12. 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.
DISMISSED
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