US v. Marvin Witherspoon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:04-cr-00005-RLV-DCK-1,5:10-cv-00076-RLV Copies to all parties and the district court/agency. [998443171] [10-7005]

US v. Marvin Witherspoon

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Date Filed: 10/12/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7005 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARVIN HAROLD WITHERSPOON, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:04-cr-00005-RLV-DCK-1; 5:10-cv00076-RLV) Submitted: September 30, 2010 Decided: October 12, 2010

Before NIEMEYER, AGEE, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Marvin court's order H. Witherspoon his 28 seeks to appeal § 2255 the district Supp.

dismissing

U.S.C.A.

(West

2010) motion as successive. a circuit justice 28 or

The order is not appealable unless judge issues a certificate (2006); Reid of v.

appealability.

U.S.C.

§ 2253(c)(1)

Angelone, 369 F.3d 363, 369 (4th Cir. 2004).

A certificate of

appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2006). prisoner reasonable 28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a satisfies jurists this would standard find that by the demonstrating district that

court's

assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief both on procedural the When the district court the prisoner ruling must is

grounds,

demonstrate

that

dispositive

procedural

debatable, and that the motion states a debatable claim of the denial of a constitutional right. We have independently reviewed the Slack, 529 U.S. at 484-85. record and conclude that

Witherspoon 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 2 presented in the materials

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before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

3