US v. Irby Dewitt

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 4:04-cr-00795-TLW-4, 4:09-cv-70083-TLW. Copies to all parties and the district court/agency. [998453819] [10-6751]

US v. Irby Dewitt

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Case: 10-6751 Document: 12

Date Filed: 10/27/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6751 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. IRBY GENE DEWITT, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:04-cr-00795-TLW-4; 4:09-cv-70083-TLW) Submitted: October 19, 2010 Decided: October 27, 2010

Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Irby Gene Dewitt, Appellant Pro Se. Rose Mary Sheppard Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Irby Gene Dewitt seeks to appeal the district court's order denying construing his motions as motions for relief under 28 U.S.C.A. § 2255 (West Supp. 2010) and denying relief. The

order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of appealability 28 U.S.C. § 2253(c)(1) (2006). will not issue absent "a

substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2006). relief on the merits, that a When the district court denies satisfies would this standard that claims 473, by the is 484

prisoner

demonstrating district debatable

reasonable of v.

jurists the

find

court's or

assessment Slack

constitutional 529 U.S.

wrong.

McDaniel,

(2000); see Miller-El v. 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. at 484-85. that We have independently has not made reviewed the

Slack, 529 U.S. the record and

conclude

Dewitt

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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before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

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