US v. Percival Fenton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:07-cr-00025-GEC-BWC-1,5:11-cv-80354-GEC Copies to all parties and the district court/agency. [998729157]. Mailed to: Percival Fenton. [11-7218]

Appeal: 11-7218

Document: 10

Date Filed: 11/23/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7218

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERCIVAL NORMAN FENTON,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge. (5:07-cr-00025-GEC-BWC-1; 5:11-cv-80354-GEC)

Submitted:

November 17, 2011

Decided:

November 23, 2011

Before KING, DAVIS, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Percival Norman Fenton, Appellant Pro Se.
Grayson A. Hoffman,
Assistant United States Attorney, Harrisonburg, Virginia; Rick
A. Mountcastle, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Document: 10

Date Filed: 11/23/2011

Page: 2 of 3

PER CURIAM:
Percival Norman Fenton seeks to appeal the district
court’s

order

dismissing

(West Supp. 2011) motion.

as

untimely

his

28

U.S.C.A.

§

2255

The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.
28

U.S.C.

§ 2253(c)(1)(B)

(2006).

A

certificate

of

appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2006).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

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

demonstrate

on

both

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

must

ruling

is

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

Fenton has not made the requisite showing.
a

certificate

dispense

with

of

appealability

oral

argument

and

conclude

that

Accordingly, we deny

dismiss

because

2

and

the

the

appeal.

facts

and

We
legal

Appeal: 11-7218

Document: 10

Date Filed: 11/23/2011

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

DISMISSED

3