US v. Damon Emanuel Elliott

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999667308-2] Originating case number: 8:97-cr-00053-PJM-1,8:15-cv-01892-PJM Copies to all parties and the district court/agency. [999681672]. Mailed to: Elliott. [15-7168]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7168

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMON EMANUEL ELLIOTT,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:97-cr-00053-PJM-1; 8:15-cv-01892-PJM)

Submitted:

October 15, 2015

Decided:

October 20, 2015

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Damon Emanuel Elliott, Appellant Pro Se. Lindsay Eyler Kaplan,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Damon Emanuel Elliott seeks to appeal the district court’s
order construing his “actual innocence” motion as a successive
28 U.S.C. § 2255 (2012) motion, and dismissing it on that basis.
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(B) (2012).
issue

absent

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

28

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
Elliott has not made the requisite showing.

Accordingly, we

deny a certificate of appealability, deny Elliott’s motion for
the appointment of counsel, and dismiss the appeal.
with

oral

argument

because
2

the

facts

We dispense
and

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