US v. Sam Westry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [998254521-2], denying Motion certificate of appealability (Local Rule 22(a)) [998302811-2]. Originating case numbers: 3:04-cr-00267-RLW-1,3:07-cv-00400-RLW. Copies to all parties and the district court/agency. [998424141] [09-7879]

US v. Sam Westry

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Case: 09-7879 Document: 15

Date Filed: 09/14/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7879 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. SAM WESTRY, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:04-cr-00267-RLW-1; 3:07-cv-00400-RLW) Submitted: August 11, 2010 Decided: September 14, 2010

Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Sam Westry, Appellant Pro Se. Michael Steven Dry, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 09-7879 Document: 15

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PER CURIAM: Sam Westry seeks to appeal the district court's order denying motion. judge relief on his 28 U.S.C.A. § 2255 (West Supp. 2010)

The order is not appealable unless a circuit justice or issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006). issue absent "a

A certificate of appealability will not showing of the denial of a

substantial

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. Slack,

We have independently reviewed the record

and conclude that Westry 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 contentions are adequately presented in the materials

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Case: 09-7879 Document: 15

Date Filed: 09/14/2010

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before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

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