US v. Ricky Everhart

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying certificate of appealability. Originating case number: 5:03-cr-00034-RLV-1, 5:11-cv-00119-RLV Copies to all parties and the district court/agency. [999180289]. [13-6597]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6597

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY EUGENE EVERHART, a/k/a Red,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge.
(5:03-cr-00034-RLV-1; 5:11-cv-00119RLV)

Submitted:

August 22, 2013

Decided: August 26, 2013

Before MOTZ, DIAZ, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Ricky Eugene Everhart, Appellant Pro Se.
Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina,
Michael E. Savage, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ricky

Eugene

Everhart

seeks

to

appeal

the

district

court’s orders denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2013) motion and denying his Fed. R. Civ. P. 59(e) motion
to alter or amend that judgment.
unless

a

circuit

appealability.

justice

or

The orders are not appealable

judge

issues

a

certificate

28 U.S.C. § 2253(c)(1)(B) (2006).

of

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 Everhart 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

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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