United States v. Robert Winfield, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6778

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ROBERT LEE WINFIELD, JR., a/k/a Tubbs,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert E. Payne, Senior
District Judge. (2:95-cr-00193-REP-1; 2:99-cv-00294-REP)

Submitted: August 18, 2011 Decided: August 23, 2011

Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert Lee Winfield, Jr., Appellant Pro Se. Laura Pellatiro
Tayman, Assistant United States Attorney, Newport News,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Lee Winfield, Jr., seeks to appeal the district

court’s order denying his Fed. R. Civ. P. 60(b) motion for

reconsideration of the district court’s order denying his prior

Rule 60(b) motion, which in turn sought relief from the court’s

denial of his 28 U.S.C.A. § 2255 (West Supp. 2011) 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)

(2006). 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) (2006). 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 Winfield 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

2
and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

DISMISSED