UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6256
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HOPETON FRANK GOODEN, a/k/a Richard Doleson, a/k/a Michael
Frank Burke,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 14-7975)
Submitted: April 29, 2016 Decided: May 5, 2016
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Hopeton Frank Gooden, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hopeton Frank Gooden seeks to appeal the district court’s
orders denying relief on his 28 U.S.C. § 2255 (2012) and Fed. R.
Civ. P. 59(e) motions. We previously denied a certificate of
appealability and dismissed this appeal. United States v.
Gooden, 576 F. App’x 252 (4th Cir. 2014). The Supreme Court
granted Gooden’s petition for a writ of certiorari, vacated our
judgment, and remanded for us to reconsider the case in light of
Johnson v. United States, 135 S. Ct. 2551, 2555-56, 2561-63
(2015) (holding that residual clause definition of violent
felony in Armed Career Criminal Act (ACCA) is unconstitutionally
vague).
The district court’s dismissal and Rule 59(e) orders are
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
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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.
The district court referred this case to a magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B) (2012). The magistrate
judge recommended that relief be denied and advised Gooden that
the failure to file timely, specific objections to this
recommendation could waive appellate review of a district court
order based upon the recommendation. The timely filing of
specific objections to a magistrate judge’s recommendation is
necessary to preserve appellate review of the substance of that
recommendation when the parties have been warned of the
consequences of noncompliance. Wright v. Collins, 766 F.2d 841,
845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140
(1985).
Gooden’s objections to the magistrate judge’s
recommendation did not challenge the merits of the ACCA
enhancement but, instead, argued that trial and appellate
counsel were ineffective by allegedly failing to adequately
contest that enhancement. Accordingly, we conclude that Gooden
has waived appellate review of any challenge to the application
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of the ACCA enhancement by failing to file specific objections
on this issue after receiving proper notice. 1
With regard to Gooden’s remaining claims, we have
independently reviewed the record and conclude that Gooden has
not made the requisite showing to obtain a certificate of
appealability. 2 Accordingly, we deny Gooden’s motion for
appointment of counsel, 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.
DISMISSED
1 To the extent that Gooden wishes to contest the
application of the ACCA enhancement under Johnson, then he must
obtain authorization under 28 U.S.C. §§ 2244(b), 2255(h) (2012)
to file a second or successive § 2255 motion and, if
authorization is granted, file a successive § 2255 motion no
later than June 26, 2015. Dodd v. United States, 545 U.S. 353,
357 (2005).
2 In so holding, we note that Johnson does not affect
Gooden’s claims that trial and appellate counsel failed to
adequately challenge his ACCA enhancement. See United States v.
Dyess, 730 F.3d 354, 363 (4th Cir. 2013) (“[A]n attorney’s
failure to anticipate a new rule of law [i]s not
constitutionally deficient.” (internal quotation marks
omitted)).
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