US v. Floyd Junior Powell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:99-cr-00012-RLV-6,5:12-cv-00108-RJC Copies to all parties and the district court/agency. [999115157]. Mailed to: Powell. [13-6515]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6515

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FLOYD JUNIOR POWELL, a/k/a Dick,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Robert J. Conrad,
Jr., Chief District Judge. (5:99-cr-00012-RLV-6; 5:12-cv-00108RJC)

Submitted:

May 8, 2013

Decided:

May 24, 2013

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Floyd Junior Powell, Appellant Pro Se.
William A. Brafford,
Assistant United States Attorney, Charlotte, North Carolina; Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina; Adam Christopher Morris, Craig Darren Randall,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Floyd

Junior

Powell

seeks

to

appeal

the

district

court’s order treating his motion for relief under 28 U.S.C.
§ 1651 (2006) as a successive 28 U.S.C.A. § 2255 (West Supp.
2012) motion, and dismissing it on that basis.
appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

The order is not

or

judge

issues

a

28 U.S.C. § 2253(c)(1)(B) (2006).

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

merits,
that

court’s

debatable

or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

U.S.

that

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

claim of the denial of a constitutional right.

a

debatable

Slack, 529 U.S.

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

2

Accordingly, we

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deny a certificate of appealability and dismiss the appeal.
We dispense with oral argument because the facts and
legal
before

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED

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