United States v. Dale Ellis

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-7343


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DALE EUGENE ELLIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge.   (5:09-cr-00017-RLV-DCK-1; 5:11-cv-
00022-RLV)


Submitted:   February 9, 2012             Decided:   February 14, 2012


Before WILKINSON, AGEE, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Dale Eugene Ellis, Appellant Pro Se.        Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Dale Eugene Ellis seeks to appeal 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    Ellis    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



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED




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