US v. David Henderson

Filing 920100520

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6477

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DAVID HENDERSON, a/k/a Charldrick James Robinson, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (5:05-cr-00163-FL-1; 5:08-cv-00319-FL)

Submitted:

May 14, 2010

Decided:

May 20, 2010

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Henderson, Appellant Pro Se. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Henderson seeks to appeal the district court's order denying his Fed. R. Civ. P. 60(b) motion for relief from the district court's order denying 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); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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 Henderson 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 2

before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

3