US v. Daniel Gibert

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999647478-2] Originating case number: 8:09-cr-00438-TMC-1,8:14-cv-02641-TMC Copies to all parties and the district court/agency. [999702278].. [15-6945]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6945

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL REKUS GIBERT,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
Timothy M. Cain, District Judge.
(8:09-cr-00438-TMC-1; 8:14-cv-02641-TMC)

Submitted:

November 17, 2015

Decided:

November 19, 2015

Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Daniel Rekus Gibert, Appellant Pro Se. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Rekus Gibert seeks to appeal the district court’s
orders dismissing as untimely his 28 U.S.C. § 2255 (2012) motion
and denying his Fed. R. Civ. P. 59(e) motion.
not

appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

or

The orders are
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.

satisfies

jurists

would

of

Slack

this

the

v.

McDaniel,

standard

find

that

the

claims

constitutional
529

by

is

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

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
Gibert

has

not

made

the

requisite

showing.

See

Day

v.

McDonough, 547 U.S. 198, 209-10 (2006) (permitting sua sponte
consideration

of

“court

.

.

.

timeliness
accord[s]

of

postconviction

the

parties
2

fair

motion
notice

provided
and

an

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opportunity to present their positions”); see Hill v. Braxton,
277 F.3d 701, 706 (4th Cir. 2002).

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

DISMISSED

3