Derrick Lindsey v. Frank Perry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999591075-2]. Originating case number: 1:15-cv-00020-TDS-LPA. Copies to all parties and the district court/agency. [999626986]. Mailed to: Derrick Javon Lindsey. [15-6752]

Appeal: 15-6752

Doc: 10

Filed: 07/24/2015

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6752

DERRICK JAVON LINDSEY, a/k/a Derrick Javon Lindsey El Bey,
Petitioner - Appellant,
v.
FRANK PERRY,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:15-cv-00020-TDS-LPA)

Submitted:

July 21, 2015

Decided:

July 24, 2015

Before WILKINSON and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Derrick Javon Lindsey, Appellant Pro Se. Clarence Joe DelForge,
III, Jess D. Mekeel, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-6752

Doc: 10

Filed: 07/24/2015

Pg: 2 of 3

PER CURIAM:
Derrick Lindsey seeks to appeal the district court’s order
accepting

the

recommendation

of

the

magistrate

dismissing as late his 28 U.S.C. § 2255 (2012) motion.

judge

and

The order

is not appealable unless a circuit justice or judge issues a
certificate of appealability.

28 U.S.C. § 2253(c)(1)(B) (2012).

A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2) (2012).

28 U.S.C.

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 (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 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
Lindsey has not made the requisite showing.

Accordingly, we deny

his motion for a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal

2

Appeal: 15-6752

Doc: 10

Filed: 07/24/2015

Pg: 3 of 3

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

DISMISSED

3