US v. Michael Rice

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:05-cr-00011-REP-2,3:08-cv-00403-REP Copies to all parties and the district court/agency. [998796575]. Mailed to: Michael Rice. [11-7361]

Appeal: 11-7361

Document: 6

Date Filed: 02/27/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7361

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL WALLACE RICE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:05-cr-00011-REP-2; 3:08-cv-00403-REP)

Submitted:

February 23, 2012

Decided:

February 27, 2012

Before MOTZ, DAVIS, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael Wallace Rice, Appellant Pro Se. Elizabeth Wu, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-7361

Document: 6

Date Filed: 02/27/2012

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PER CURIAM:
Michael

Wallace

Rice

seeks

to

appeal

the

district

court’s order denying as untimely his Fed. R. Civ. P. 60(b)
motion for reconsideration of the district court’s order denying
relief on his 28 U.S.C.A. § 2255 (West Supp. 2011) motion.

The

order is not appealable unless a circuit justice or judge issues
a

certificate

(2006).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(B)

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

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
Rice

independently
has

not

made

reviewed
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
2

Appeal: 11-7361

before

Document: 6

Date Filed: 02/27/2012

the

and

court

argument

would

Page: 3 of 3

not

aid

the

decisional

process.
DISMISSED

3