United States v. Thomas Franklin

                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-6578


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS LAGENE FRANKLIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00007-RJC-1; 3:08-cv-00051-
RJC)


Submitted:   July 26, 2012                 Decided:   August 2, 2012


Before MOTZ, DAVIS, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Thomas Lagene Franklin, 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Unpublished opinions are not binding precedent in this circuit.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:

            Thomas Lagene Franklin seeks to appeal the district

court’s order denying relief on his 28 U.S.C.A. § 2255 (West

Supp.    2012)    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 Franklin 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




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           DISMISSED




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