United States v. Jerry Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6827

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JERRY JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:07-cr-00104-IMK-JSK-5; 1:14-cv-00091-IMK-
JSK)

Submitted: August 20, 2015 Decided: August 25, 2015

Before DUNCAN, KEENAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jerry Johnson, Appellant Pro Se. Michael D. Stein, Assistant
United States Attorney, Wheeling, West Virginia, Zelda Elizabeth
Wesley, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jerry Johnson seeks to appeal the district court’s order

accepting the recommendation of the magistrate judge and

dismissing his 28 U.S.C. § 2255 (2012) motion as successive.

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

Johnson 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