US v. Rodney Whitney

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 3:11-cr-00049-FDW-1,3:14-cv-00045-FDW Copies to all parties and the district court/agency. [999496964]. Mailed to: Rodney Whitney. [14-7086]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7086

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY W. WHITNEY,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:11-cr-00049-FDW-1; 3:14-cv-00045-FDW)

Submitted:

December 16, 2014

Before DUNCAN and
Circuit Judge.

KEENAN,

Decided:

Circuit

Judges,

December 19, 2014

and

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Rodney W. Whitney, Appellant Pro Se.
Ellen Ruth Meltzer,
Special Counsel, UNITED STATES DEPARTMENT OF JUSTICE, Fraud
Division, Washington, D.C.; 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Unpublished opinions are not binding precedent in this circuit.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:
Rodney W. Whitney seeks to appeal the district court’s
order adjudicating his 28 U.S.C. § 2255 (2012) motion, in which
the district court granted relief in part by directing vacatur
and reentry of Whitney’s criminal judgment so as to permit him
the

opportunity

to

file

a

direct

appeal,

but

dismissed

the

remainder of the § 2255 claims without prejudice.
Whitney

confines

his

appeal

to

the

portion

of

the

district court’s order dismissing his claims without prejudice. *
This ruling, however, is not appealable unless a circuit justice
or

judge

issues

a

certificate

§ 2253(c)(1)(B) (2012).
issue

absent

“a

constitutional

of

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

right.”

28

showing
U.S.C.

of

the

denial

§ 2253(c)(2).

of

When

a
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
*

We do not consider the portion of the district court’s
order granting Whitney § 2255 relief in part because Whitney
does not address it in his informal appellate brief.

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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 Whitney has not made the requisite showing.

Accordingly,

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

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

DISMISSED

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