US v. Nigel Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 4:02-cr-00060-H-5,4:10-cv-00195-H Copies to all parties and the district court/agency. [999674618]. Mailed to: Nigel Clarke. [14-7616]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7616

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NIGEL CLARKE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.
Malcolm J. Howard,
Senior District Judge. (4:02-cr-00060-H-5; 4:10-cv-00195-H)

Submitted:

September 28, 2015

Decided:

October 8, 2015

Before GREGORY, AGEE, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Nigel Clarke, Appellant Pro Se.
Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Michael Gordon James, Kimberly
Ann Moore, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Nigel Clarke seeks to appeal the district court’s order
denying his Fed. R. Civ. P. 60(b) motion to vacate the district
court’s order dismissing as untimely his 28 U.S.C. § 2255 (2012)
motion.
judge

The order is not appealable unless a circuit justice or
issues

a

certificate

§ 2253(c)(1)(B) (2012).
issue

absent

“a

of

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

appealability.

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
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
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
Clarke has not made the requisite showing.
a

certificate

dispense

with

of

appealability

oral

argument

and

dismiss

because

2

Accordingly, we deny

the

the

appeal.

facts

and

We
legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3