US v. Frederick Brook

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 6:08-cr-00121-HMH-1,6:12-cv-02235-HMH Copies to all parties and the district court/agency. [999076722]. Mailed to: Frederick Smith Brooks. [12-7747]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7747

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDERICK SMITH BROOKS, a/k/a Spoon,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville.
Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-00121-HMH-1; 6:12-cv-02235-HMH)

Submitted:

March 28, 2013

Decided:

April 1, 2013

Before NIEMEYER, KING, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Frederick Smith Brooks, Appellant Pro Se.
Elizabeth Jean
Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Frederick Smith Brooks seeks to appeal the district
court’s

order

dismissing

(West Supp. 2012) 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.

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

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

Accordingly, we

deny a certificate of appealability and dismiss the appeal.
dispense

with

oral

argument

because

the

facts

and

We

legal

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contentions

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are

adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.
DISMISSED

3