US v. Roosevelt Simmon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:07-cr-00040-FPS-JSK-1,5:11-cv-00057-FPS-JSK Copies to all parties and the district court/agency. [999461987]. Mailed to: Roosevelt Simmons. [14-6877]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-6877

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROOSEVELT SIMMONS,
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.
(5:07-cr-00040-FPS-JSK-1; 5:11-cv00057-FPS-JSK)

Submitted:

October 21, 2014

Decided:

October 24, 2014

Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Roosevelt Simmons, Appellant Pro Se. David J. Perri, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Roosevelt Simmons seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C. § 2254 (2012) petition.

The

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

certificate

(2012).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A)

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).
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

constitutional
529

U.S.

by

that

the

claims

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 petition 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.

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