UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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