United States v. Warshahennedige Fernando

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6356

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

WARSHAHENNEDIGE ANTON RAJ NISHANTHA FERNANDO,

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. (1:07-cr-00038-NCT-1; 1:10-cv-
00192-NCT-JEP; 1:10-cv-00257-NCT-JEP)

Submitted: June 13, 2013 Decided: June 18, 2013

Before NIEMEYER, KING, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Warshahennedige Anton Raj Nishantha Fernando, Appellant Pro Se.
Michael A. DeFranco, Angela Hewlett Miller, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Warshahennedige Anton Raj Nishantha Fernando 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 Fernando has not made the requisite showing. Accordingly,

we deny a certificate of appealability, deny leave to proceed in

forma pauperis, and dismiss the appeal. We dispense with oral

argument because the facts and legal contentions are adequately

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presented in the materials before this court and argument would

not aid the decisional process.

DISMISSED

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