United States v. James McGowan

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6885

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JAMES RODRIKUS MCGOWAN,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:06-cr-00989-HMH-1; 6:10-cv-70267-HMH)

Submitted: October 18, 2011 Decided: October 21, 2011

Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James Rodrikus McGowan, Appellant Pro Se. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

James Rodrikus McGowan 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 relief on

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 McGowan 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 contentions are adequately presented in the materials

2
before the court and argument would not aid the decisional

process.

DISMISSED