US v. Tico Fleming

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 1:07-cr-00033-MR-4,1:08-cv-00520-MR Copies to all parties and the district court/agency. [998844403]. Mailed to: Tico Fleming. [12-6229]

Appeal: 12-6229

Document: 5

Date Filed: 05/01/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6229

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TICO LOMBARD FLEMING,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00033-MR-4; 1:08-cv-00520-MR)

Submitted:

April 26, 2012

Decided:

May 1, 2012

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Tico Lombard Fleming, Appellant Pro Se.
Thomas Richard Ascik,
Richard Lee Edwards, Amy Elizabeth Ray, Assistant United States
Attorneys, Corey F. Ellis, Jill Westmoreland Rose, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-6229

Document: 5

Date Filed: 05/01/2012

Page: 2 of 3

PER CURIAM:
Tico

Lombard

Fleming

seeks

to

appeal

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 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.

Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude
that Fleming has not made the requisite showing.

Accordingly,

we deny a certificate of appealability and dismiss the appeal.
We

dispense

with

oral

argument

2

because

the

facts

and

legal

Appeal: 12-6229

Document: 5

Date Filed: 05/01/2012

Page: 3 of 3

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

DISMISSED

3