US v. Robert Wilkerson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying updating certificate of appealability status Originating case number: 5:96-cr-00167-H-1 Copies to all parties and the district court/agency. [998530182] [10-7588]

Case: 10-7588

Document: 8

Date Filed: 02/23/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7588

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT MOSES WILKERSON,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.
Malcolm J. Howard,
Senior District Judge. (5:96-cr-00167-H-1)

Submitted:

February 10, 2011

Decided:

February 23, 2011

Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Robert Moses Wilkerson, Appellant Pro Se.
Steve R. Matheny,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-7588

Document: 8

Date Filed: 02/23/2011

Page: 2

PER CURIAM:
Robert Moses Wilkerson seeks to appeal the district
court’s order denying his self-styled motion for writ of audit
querela.

Because

Wilkerson’s

motion

was

a

successive

and

unauthorized 28 U.S.C.A. § 2255 (West Supp. 2010) motion, see
28 U.S.C. § 2255(h); In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997), the district court was obligated to dismiss the motion,
see United States v. Winestock, 340 F.3d 200, 205 (4th Cir.
2003), and the order is not appealable unless a circuit justice
or

judge

issues

§ 2253(c)(1)

a

certificate

(2006);

Reid

v.

of

appealability.
369

Angelone,

28

F.3d

U.S.C.

363,

369

(4th Cir. 2004).
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
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

U.S.

that

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

claim of the denial of a constitutional right.
2

a

debatable

Slack, 529 U.S.

Case: 10-7588

at

484-85.

conclude

We

that

Document: 8

have

Date Filed: 02/23/2011

independently

Wilkerson

has

not

reviewed

made

the

Page: 3

the

record

requisite

and

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
before

the

court

and

argument

would

not

aid

the

decisional

process.
DISMISSED

3