US v. Wayne Simmon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 2:10-cr-00009-D-1,2:12-cv-00005-D Copies to all parties and the district court/agency. [999283318]. Mailed to: Wayne Dwight Simmons. [13-7545]

Appeal: 13-7545

Doc: 8

Filed: 01/24/2014

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7545

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE DWIGHT SIMMONS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever,
III, Chief District Judge. (2:10-cr-00009-D-1; 2:12-cv-00005-D)

Submitted:

January 21, 2014

Decided: January 24, 2014

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Halerie Fay Mahan, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.
David A. Bragdon,
Assistant United States Attorney, J. Frank Bradsher, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-7545

Doc: 8

Filed: 01/24/2014

Pg: 2 of 3

PER CURIAM:
Wayne

Dwight

Simmons

seeks

to

appeal

the

district

court’s orders denying relief on his 28 U.S.C. § 2255 (2012)
motion

based

on

reconsideration.

his

collateral

review

waiver

and

denying

The orders are not appealable unless a circuit

justice or judge issues a certificate of appealability.
U.S.C. § 2253(c)(1)(B) (2012).

See 28

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

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 Simmons has not made the requisite showing.

See United

States v. Copeland, 707 F.3d 522, 528-30 (4th Cir. 2013); United
States
States

v.
v.

Blick,

408

Lemaster,

F.3d
403

162,
F.3d
2

172
216,

(4th
220

Cir.
(4th

2005);

United

Cir.

2005).

Appeal: 13-7545

Doc: 8

Filed: 01/24/2014

Pg: 3 of 3

Accordingly, we deny a certificate of appealability and dismiss
the appeal.

We dispense 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