United States v. Michael Rice

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7361

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

MICHAEL WALLACE RICE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:05-cr-00011-REP-2; 3:08-cv-00403-REP)

Submitted: February 23, 2012 Decided: February 27, 2012

Before MOTZ, DAVIS, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael Wallace Rice, Appellant Pro Se. Elizabeth Wu, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Wallace Rice seeks to appeal the district

court’s order denying as untimely 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 Rice 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