US v. David Riley

Filing 920090417

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6338 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID ALLEN RILEY, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:07-cr-00023-jpj-mfu-1) Submitted: April 3, 2009 Decided: April 17, 2009 Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. David Allen Riley, Appellant Pro Se. Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Allen Riley seeks to appeal the district court's order dismissing his 28 U.S.C.A. 2255 (West Supp. 2008) motion following the Government's motion to dismiss based on a waiver provision in Riley's plea agreement. On appeal, Riley does not contest the validity of the waiver, but rather argues new evidence supports a 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) (2006). issue absent "a A certificate of appealability will not showing U.S.C. standard find the that of the denial of a A that the or substantial 28 constitutional prisoner reasonable right." this would by 2253(c)(2) by any (2006). satisfies jurists demonstrating assessment is of constitutional claims district court debatable wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that because Riley makes no argument on appeal that the district court erred in finding the plea was knowing and voluntary and that his claims are within the scope of the waiver, he has waived appellate review of these claims. 2 Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). Even if Riley properly pursued these claims on appeal, however, we would find that reasonable jurists would not find the district court's disposition debatable or wrong. ineffective assistance of Furthermore, Riley's claim of presented in the first counsel instance on appeal is barred as it falls within the scope of his waiver of the right to pursue relief pursuant to 2255. United States v. Blick, 408 F.3d 162, 168 (4th Cir. See 2005); United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). Accordingly, and dismiss the appeal. we deny a certificate of appealability We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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