US v. Derrick Simmon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999457327-2]. Originating case numbers: 7:07-cr-00294-HMH-12,7:14-cv-02535-HMH. Copies to all parties and the district court. [999526459]. Mailed to: Appellant. [14-7376]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7376

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK SIMMONS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:07-cr-00294-HMH-12; 7:14-cv-02535-HMH)

Submitted:

February 6, 2015

Before WYNN and
Circuit Judge.

DIAZ,

Circuit

Decided:

Judges,

and

February 10, 2015

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Derrick Simmons, Appellant Pro Se. Andrew Burke Moorman, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Derrick Simmons seeks to appeal the district court’s
orders dismissing as untimely his 28 U.S.C. § 2255 (2012) motion
and denying his motion for reconsideration.
appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

The orders are not

or

judge

issues

a

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 Simmons has not made the requisite showing.

Accordingly,

we deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal.

We dispense with oral

argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED

3