US v. Darrell Bank

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 1:09-cr-00052-MR-1,1:12-cv-00166-MR Copies to all parties and the district court/agency. [999479892]. Mailed to: Darrell Banks. [14-7299]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7299

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARRELL EUGENE BANKS,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00052-MR-1; 1:12-cv-00166-MR)

Submitted:

November 18, 2014

Decided:

November 21, 2014

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam
opinion.

Darrell Eugene Banks, 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Unpublished opinions are not binding precedent in this circuit.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:
Darrell

Eugene

Banks

appeals

the

district

August 13, 2014 order denying his ex parte motion.

court’s

Insofar as

Banks challenges the district court’s denial of relief under
Fed. R. Crim. P. 36, we have reviewed the record and find no
reversible error.

Accordingly, we affirm this portion of the

order for the reasons stated by the district court.

United

States v. Banks, Nos. 1:09-cr-00052-MR-1 (W.D.N.C. filed Aug.
13, 2014 & entered Aug. 14, 2014).
Insofar as Banks challenges the court’s construction
of his motion as an unauthorized, successive motion under 28
U.S.C. § 2255 (2012), this portion of the district court’s 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).

We have independently reviewed

the record and conclude that Banks has not made the requisite
showing.

See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003)

(describing required showing); Slack v. McDaniel, 529 U.S. 473,
484-85 (2000) (same).
appealability
dispense

with

and

Accordingly, we deny a certificate of

dismiss

oral

this

argument

portion
because

2

of
the

the

appeal.

facts

and

We
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.

AFFIRMED IN PART;
DISMISSED IN PART

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