United States v. Cathy Ferguson

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6558 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CATHY DIANE FERGUSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Timothy M. Cain, District Judge. (7:09-cr-00890-TMC-1; 7:11-cv-70060-TMC) Submitted: July 26, 2012 Decided: August 2, 2012 Before MOTZ and DAVIS, Circuit Judges. ∗ Dismissed by unpublished per curiam opinion. Cathy Diane Ferguson, Appellant Pro Se. David Calhoun Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. ∗ The opinion is filed by a quorum pursuant to 28 U.S.C. § 46(d). PER CURIAM: Cathy Diane Ferguson seeks to appeal the district court’s order denying relief on her 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 Ferguson has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Ferguson’s motion for appointment of counsel. We dispense with oral argument because the facts and legal 2 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3