US v. Malcolm Carry

Filing 920100513

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6684 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MALCOLM JERMAINE CARRY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:04-cr-00167-BO-1; 5:07-cv-00448-BO) Submitted: May 3, 2010 Decided: May 13, 2010 Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Malcolm Jermaine Carry, Appellant Pro Se. Edward D. Gray, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Malcolm Jermaine Carry seeks to appeal the district court's order denying relief on his 28 U.S.C.A. 2255 (West Supp. 2009) 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). 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. 484 (2000); see Miller-El v. Slack v. McDaniel, 529 U.S. 473, 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. 529 U.S. at 484-85. and conclude that we Slack, We have independently reviewed the record Carry has not made the for requisite a showing. of Accordingly, deny Carry's motion certificate appealability and dismiss the appeal. appoint facts counsel legal and dispense with are We deny Carry's motion to oral argument because in the the and contentions adequately presented 2 materials before the court and argument would not aid the decisional process. DISMISSED 3

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