US v. James Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 5:99-cr-00161-1,5:09-cv-01257. Copies to all parties and the district court/agency. [999053377]. Mailed to: James Smith. [12-7809]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7809

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES PRESTON SMITH,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.
Irene C. Berger,
District Judge. (5:99-cr-00161-1; 5:09-cv-01257)

Submitted:

February 26, 2013

Decided:

February 28, 2013

Before MOTZ, WYNN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James Preston Smith, Appellant Pro Se. John J. Frail, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James

Preston

Smith

seeks

to

appeal

the

district

court’s order adopting the magistrate judge’s recommendation and
denying as successive his 28 U.S.C.A. § 2255 (West Supp. 2012)
motion.
judge

The order is not appealable unless a circuit justice or
issues

a

certificate

§ 2253(c)(1)(B) (2006).
issue

absent

“a

of

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

appealability.

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2006).

of

a

When the

district court denies relief on the merits, a prisoner satisfies
this

standard

by

demonstrating

that

reasonable

jurists

would

find that the district court’s assessment of the constitutional
claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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 484-85.
We have independently reviewed the record and conclude
that Smith has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.
dispense

with

oral

argument

because

2

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