United States v. David Hicks

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                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-7241


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

DAVID A. HICKS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.   John T. Copenhaver,
Jr., District Judge. (2:05-cr-00040-1; 2:10-cv-01155)


Submitted:   January 22, 2013               Decided: January 24, 2013


Before WILKINSON and NIEMEYER, Circuit Judges. ∗


Dismissed by unpublished per curiam opinion.


David A. Hicks, Appellant Pro Se. Louise Anna Forbes, Steven
Loew, Assistant United States Attorneys, Charleston, West
Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

            David A. Hicks seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

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 Hicks 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

this court and argument would not aid the decisional process.



                                                               DISMISSED




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