US v. Brian C. Jenkin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00006-FPS-JES-1, 5:13-cv-00099-FPS-JES. Copies to all parties and the district court/agency. [999330270]. Mailed to: Brian Jenkins. [13-7760]

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Appeal: 13-7760 Doc: 6 Filed: 04/04/2014 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7760 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BRIAN C. JENKINS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:11-cr-00006-FPS-JES-1; 5:13-cv00099-FPS-JES) Submitted: March 28, 2014 Decided: April 4, 2014 Before SHEDD, DIAZ, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Brian C. Jenkins, Appellant Pro Se. David J. Perri, Assistant United States Attorney, Wheeling, West Virginia, for Appellee.. Unpublished opinions are not binding precedent in this circuit. Appeal: 13-7760 Doc: 6 Filed: 04/04/2014 Pg: 2 of 3 PER CURIAM: Brian C. Jenkins seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and 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. A certificate of 28 U.S.C. § 2253(c)(1)(B) (2012). appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). 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 Jenkins 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 Appeal: 13-7760 Doc: 6 contentions Filed: 04/04/2014 are adequately Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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