United States v. Jahmal Gray

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                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 16-7523


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

JAHMAL R. GRAY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Rebecca Beach Smith,
Chief District Judge.  (4:08-cr-00025-RBS-FBS-1; 4:16-cv-00086-
RBS)


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Dismissed by unpublished per curiam opinion.


Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Kaitlin Courtney Gratton,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Jahmal R. Gray seeks to appeal the district court’s order

dismissing as untimely 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

Gray 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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