US v. David Spence

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UNPUBLISHED PER CURIAM OPINION filed.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]

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US v. David Spence Doc. 0 Case: 10-7160 Document: 10 Date Filed: 03/02/2011 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7160 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID CORNELL SPENCE, Defendant -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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Document: 10 Date Filed: 03/02/2011 Page: 2 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 2 Case: 10-7160 Document: 10 Date Filed: 03/02/2011 Page: 3 before the court and argument would not aid the decisional process. DISMISSED 3

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