US v. John Anderson, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:00-cr-00033-BEL-1,1:07-cv-00234-BEL Copies to all parties and the district court/agency. [998564024]. Mailed to: John David Anderson, Jr., #33993-037, FCI PETERSBURG LOW, FEDERAL CORRECTIONAL INSTITUTION, P. O. Box 1000, Petersburg, VA 23804-0000. [09-8205, 10-6721]

Case: 09-8205

Document: 19

Date Filed: 04/08/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-8205

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN DAVID ANDERSON, JR.,
Defendant – Appellant.

No. 10-6721

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN DAVID ANDERSON, JR.,
Defendant – Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:00-cr-00033-BEL-1; 1:07-cv-00234-BEL)

Submitted:

March 28, 2011

Decided:

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

April 8, 2011

Case: 09-8205

Document: 19

Date Filed: 04/08/2011

Page: 2

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

John David Anderson, Jr., Appellant Pro Se.
Martin Joseph
Clarke, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Case: 09-8205

Document: 19

Date Filed: 04/08/2011

Page: 3

PER CURIAM:
John David Anderson, Jr., seeks to appeal the district
court’s orders from November 2009 * and May 2010 denying relief on
his 28 U.S.C.A. § 2255 (West Supp. 2010) motion.

With respect

to the November 2009 order, 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).

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

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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

*

Anderson’s appeal from the November 2009 order was
interlocutory when filed. The district court’s subsequent entry
of a final judgment permits review of the order under the
doctrine of cumulative finality.
See In re Bryson, 406 F.3d
284, 287-89 (4th Cir. 2005); Equip. Fin. Group, Inc. v. Traverse
Computer Brokers, 973 F.2d 345, 347 (4th Cir. 1992).

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Case: 09-8205

Document: 19

Date Filed: 04/08/2011

Page: 4

and conclude that Anderson has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal in part.
With

respect

to

the

May

2010

order,

which

denied

relief after an evidentiary hearing, it is Anderson’s burden to
include in the record on appeal a transcript of all parts of the
proceedings material to the issues raised on appeal.
R. App. P. 10(b); 4th Cir. R. 10(b).

See Fed.

Although the district

court granted Anderson a transcript at government expense, he
failed to produce the entirety of that transcript.
to

produce

a

transcript,

Anderson

has

waived

By failing

review

of

the

issues on appeal that depend on the transcript to show error.
See

Powell

v.

Estelle,

959

F.2d

22,

26

(5th

Cir.

1992)

(per curiam); Keller v. Prince George’s Cnty., 827 F.2d 952, 954
n.1 (4th Cir. 1987).

As no error appears on the record before

us, we affirm the district court’s order as to the claim upon
which a certificate of appealability was granted, and deny a
certificate of appealability and dismiss as to the remaining
claim.
legal
before

We dispense with oral argument because the facts and
contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
DISMISSED IN PART;
AFFIRMED IN PART

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