Timothy Walden v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 3:04-cr-00039-FDW-5, 3:12-cv-00421-FDW. Copies to all parties and the district court. [1000096269]. Mailed to: Timothy Walden. [13-6908]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6908

TIMOTHY HOWARD WALDEN,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.

Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:04-cr-00039-FDW-5; 3:12-cv00421-FDW)

Submitted: May 30, 2017

Decided: June 7, 2017

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Timothy Howard Walden, Appellant Pro Se. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Timothy Howard Walden seeks to appeal the district court’s order denying relief
on his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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) (2012). 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 (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 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 Walden has not
made the requisite showing. ∗ Accordingly, we deny a certificate of appealability and
dismiss the appeal.

We dispense with oral argument because the facts and legal

∗

To the extent Walden sought to raise his claim under 28 U.S.C. § 2241 (2012),
by way of the savings clause in 28 U.S.C. § 2255(e), his claim is not cognizable because
the change in law he seeks to assert did not occur “‘subsequent to [his] direct appeal and
first § 2255 motion.’” Prousalis v. Moore, 751 F.3d 272, 275 (4th Cir. 2014) (quoting In
re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000)).

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contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED

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