US v. Everette Atkinson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for abeyance (Local Rule 12(d)) [999244212-2], updating certificate of appealability status Originating case number: 5:05-cr-00009-FL-1,5:12-cv-00283-FL Copies to all parties and the district court/agency. [999522467]. Mailed to: Everette Atkinson. [13-6669]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6669

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVERETTE ATKINSON, a/k/a Rick,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:05-cr-00009-FL-1; 5:12-cv-00283-FL)

Submitted:

January 20, 2015

Decided:

February 3, 2015

Before GREGORY, SHEDD, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Everette Atkinson, Appellant Pro Se.
Jennifer P. May-Parker,
Assistant United States Attorney, Kristine L. Fritz, Banumathi
Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Everette Atkinson seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing as untimely his 28 U.S.C. § 2255 (2012) motion.

The

order is not appealable unless a circuit justice or judge issues
a

certificate

(2006).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(B)

A certificate of 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 Atkinson has not made the requisite showing.

Accordingly,

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

further

deny

Atkinson’s

motion

to

place

this

abeyance for No. 13-7841, United States v. Foote.
2

appeal

in

We dispense

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with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
DISMISSED

3