US v. David Hughe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying proceed in forma pauperis; denying for certificate of appealability Originating case number: 1:05-cr-00273-MR-1 Copies to all parties and the district court/agency. [998513053] [10-7431]

Case: 10-7431

Document: 5

Date Filed: 01/28/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7431

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID HOWARD HUGHES,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:05-cr-00273-MR-1)

Submitted:

January 18, 2011

Decided:

January 28, 2011

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Howard Hughes, Appellant Pro Se.
Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-7431

Document: 5

Date Filed: 01/28/2011

Page: 2

PER CURIAM:
David

Howard

Hughes

seeks

to

appeal

the

district

court’s order construing his Petition for Writ of Error Audita
Querela, 28 U.S.C. § 1651 (2006), as a successive 28 U.S.C.A.
§ 2255 (West Supp. 2010) motion and denying it on that basis,
and a subsequent order denying his motion for reconsideration.
The orders are not appealable unless a circuit justice or judge
issues a certificate of appealability.
(2006).

28 U.S.C. § 2253(c)(1)

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).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

the

claims

constitutional
529

by

is

473,

484

(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.

Slack, 529 U.S.

at

the

484-85.

conclude

We

that

have

Hughes

independently
has

not

made

reviewed
the

record

requisite

and

showing.

Accordingly, we deny a certificate of appealability, deny leave
to

proceed

in

forma

pauperis,
2

and

dismiss

the

appeal.

We

Case: 10-7431

dispense

with

Document: 5

oral

argument

Date Filed: 01/28/2011

because

the

Page: 3

facts

and

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

DISMISSED

3