United States v. Herman Tate

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                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-6148


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

HERMAN LEE TATE,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Frank D. Whitney, Chief District Judge. (5:98-cr-00125-FDW-9)


Submitted: May 31, 2019                                           Decided: June 11, 2019


Before KING and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed in part and dismissed in part by unpublished per curiam opinion.


Herman Lee Tate, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

       Herman Lee Tate appeals the district court’s order denying his motion to clarify

judgment and his motion to correct alleged clerical errors in his presentence investigation

report. We affirm in part and dismiss in part.

       With respect to the motion to clarify, we have reviewed the record and find no

reversible error. We therefore affirm this portion of the court’s order for the reasons

stated by the district court. United States v. Tate, No. 5:98-cr-00125-FDW-9 (W.D.N.C.

Jan. 3, 2019).

       With respect to the motion to correct clerical errors, the district court properly

construed the motion as filed pursuant to 28 U.S.C. § 2255 (2012). 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 Tate has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss this portion of the appeal.

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      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.

                                                                AFFIRMED IN PART,
                                                                DISMISSED IN PART




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