United States v. Gary Terry

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6190 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY IVAN TERRY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:03-cr-00299-NCT-1; 1:09-cv- 00430-NCT-PTS) Submitted: May 25, 2012 Decided: June 8, 2012 Before KING, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Gary Ivan Terry, Appellant Pro Se. Lisa Blue Boggs, Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gary Ivan Terry seeks to appeal the district court’s order denying his Fed. R. Civ. P. 59(e) motion in which he sought reconsideration of the 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 Terry has not made the requisite showing. Accordingly, we deny Terry’s motion for a certificate of appealability, deny his motion to place the appeal in abeyance, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with 2 oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3