US v. Joseph Briscoe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 3:07-cr-00065-JPB-JES-1,3:14-cv-00127-JPB-JES Copies to all parties and the district court/agency. [999719934]. Mailed to: Joseph Briscoe. [15-7007]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7007

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH TERRELL BRISCOE, a/k/a Dreads,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge.
(3:07-cr-00065-JPB-JES-1; 3:14-cv-00127-JPBJES)

Submitted:

December 15, 2015

Before GREGORY
Circuit Judge.

and

FLOYD,

Decided:

Circuit

Judges,

December 17, 2015

and

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Joseph Terrell Briscoe, Appellant Pro Se.
Paul Thomas
Camilletti, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joseph Terrell Briscoe seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying as untimely his 28 U.S.C. § 2255 (2012) motion.

The

order is not appealable unless a circuit justice or judge issues
a

certificate

(2012).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(B)

A certificate of 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

the

v.

McDaniel,

Slack

this

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
Briscoe has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.
dispense

with

oral

argument

because

2

the

facts

and

We

legal

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contentions

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are

adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3