United States v. Eric Whitener

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6818

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERIC LAMOUNT WHITENER,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:90-cr-00085-MOC-3; 3:14-cv-00600-MOC)

Submitted: December 15, 2016 Decided: December 19, 2016

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Eric Lamount Whitener, 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Unpublished opinions are not binding precedent in this circuit.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:

Eric Lamount Whitener seeks to appeal the district court’s

order granting his motion for reconsideration of a prior order

dismissing his 28 U.S.C. § 2255 (2012) motion as time-barred;

denying his motion for recusal; denying his motion for

reconsideration of a prior order denying his objection to the

Government’s untimely filings; and ultimately denying relief on

his § 2255 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) (2012). 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) (2012). 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

Whitener has not made the requisite showing. Accordingly, we

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deny a certificate of appealability and dismiss the appeal. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

DISMISSED

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