US v. Clyde Gray, Jr.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status; denying Motion to appoint/assign counsel [999590023-2] Originating case number: 1:09-cr-00326-GBL-2 Copies to all parties and the district court/agency. [999679419]. Mailed to: Clyde Austin Gray, Jr.. [14-7443]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7443
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLYDE AUSTIN GRAY, JR., a/k/a Poochie,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:09-cr-00326-GBL-2)
Submitted:
September 15, 2015
Decided:
October 16, 2015
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Clyde Austin Gray, Jr., Appellant Pro Se.
Dana James Boente,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Clyde
Austin
Gray,
Jr.,
seeks
to
appeal
the
district
court’s order denying his Fed. R. Civ. P. 60(b) motion in which
he sought reconsideration of the district court’s order denying
relief on his 28 U.S.C. § 2255 (2012) motion.
We previously
placed this appeal in abeyance pending our decision in United
States
v.
McRae,
No.
13-6878,
in
which
this
court
addressed
whether an appeal from the dismissal of a Rule 60(b) motion as a
successive,
unauthorized
§
2255
motion
is
certificate of appealability requirement.
that
a
limited
certificate
of
circumstance,
appealability
but
is
reaffirmed
subject
to
the
We have since held
not
the
required
holding
in
in
that
Reid
v.
Angelone, 369 F.3d 363, 369 (4th Cir. 2004), that the issuance
of a certificate of appealability is a prerequisite to appellate
consideration of an appeal from the denial of a true Rule 60(b)
motion.
United States v. McRae, 793 F.3d 392, 399-400 (4th Cir.
2015).
Thus, the district court’s order denying Gray’s Rule 60(b)
motion
issues
is
not
a
appealable
certificate
§ 2253(c)(1)(B) (2012).
issue
absent
“a
unless
of
circuit
justice
appealability.
or
28
judge
U.S.C.
A certificate of appealability will not
substantial
constitutional right.”
a
showing
of
the
denial
28 U.S.C. § 2253(c)(2) (2012).
of
a
When the
district court denies relief on the merits, a prisoner satisfies
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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
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
Gray has not made the requisite showing.
Accordingly, we deny
Gray’s motion for appointment of counsel, deny a certificate of
appealability, and dismiss the appeal.
We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
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