United States v. Rocci Wade

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                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 16-7598


UNITED STATES OF AMERICA,

                       Plaintiff – Appellee,

          v.

ROCCI WADE,

                       Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.    John Preston Bailey,
District Judge.    (5:13-cr-00030-JPB-RWT-5; 5:15-cv-00080-JPB-
RWT)


Submitted:    March 14, 2017                 Decided:     March 17, 2017


Before FLOYD and     HARRIS,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Rocci Wade, Appellant Pro Se. Randolph John Bernard, OFFICE OF
THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Rocci      Wade      seeks    to    appeal          the   district      court’s        order

adopting the magistrate judge’s report and recommendation and

denying relief on his 28 U.S.C. § 2255 (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) (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

Wade 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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