US v. Howard Beard

Filing 920100624

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-8115

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HOWARD J. BEARD, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:02-cr-30020-sgw-mfu-4; 5:09-cv-80124sgw-mfu)

Submitted:

June 17, 2010

Decided:

June 24, 2010

Before MOTZ and Circuit Judge.

KING,

Circuit

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Howard J. Beard, Appellant Pro Se. Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia; Ryan Lee Souders, Jeb Thomas Terrien, Assistant United States Attorneys, Harrisonburg, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Howard J. Beard seeks to appeal the district court's order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2010) motion. judge 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. and conclude that Slack,

We have independently reviewed the record Beard has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal. dispense with We deny Beard's motion to appoint counsel. oral argument because presented the in facts the and We legal

contentions

are

adequately

materials

2

before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

3