US v. Marcellus Thoma

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 1:08-cr-00003-WO-1,1:11-cv-01007-WO-JLW Copies to all parties and the district court/agency. [999659017]. Mailed to: Marcellus Thomas 1473 Cantwell Court High Point, NC 27265. [15-6766]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6766

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARCELLUS THOMAS,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge.
(1:08-cr-00003-WO-1; 1:11-cv-01007WO-JLW)

Submitted:

September 9, 2015

Decided:

September 14, 2015

Before SHEDD, WYNN, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Marcellus Thomas, Appellant Pro Se. Harry L. Hobgood, Angela
Hewlett Miller, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marcellus Thomas seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his 28 U.S.C. § 2255 (2012) motion.
appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

The order is 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
Thomas has not made the requisite showing.

Accordingly, we deny

Thomas’s request for 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
2

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argument

would

not

aid

the

decisional

process.

DISMISSED

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