US v. David Spence

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:07-cr-00289-FL-1,5:09-cv-00161-FL. Copies to all parties and the district court/agency. [998535790] [10-7160]

US v. David Spence

Doc. 0

Case: 10-7160

Document: 10

Date Filed: 03/02/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7160

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID CORNELL SPENCE, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (5:07-cr-00289-FL-1; 5:09-cv-00161-FL)

Submitted:

February 24, 2011

Decided:

March 2, 2011

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Cornell Spence, Appellant Pro Se. Jennifer P. May-Parker, Rudolf A. Renfer, Jr., Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 10-7160

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Date Filed: 03/02/2011

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PER CURIAM: David court's order Cornell accepting Spence the seeks to appeal of the the district

recommendation

magistrate

judge and dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp. 2010) 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). 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) (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 Spence 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

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Case: 10-7160

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Date Filed: 03/02/2011

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before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

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