David Smith v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to stay mandate [FRAP 41(d)] [999741812-2]; denying Motion for other relief [999740027-2], denying Motion for other relief [999733664-2], denying Motion for other relief [999710583-2], denying Motion for other relief [999694263-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999733662-2], denying Motion to proceed in forma pauperis (FRAP 24) [999686782-2]; denying Motion for initial hearing en banc (FRAP 35) [999714041-2]; denying Motion for bail/release pending appeal (Local Rule 9(a) and (b)) [999686761-2], updating certificate of appealability status Originating case number: 5:15-hc-02128-D Copies to all parties and the district court. [999749995]. Mailed to: David Smith. [15-7682]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7682

DAVID LEE SMITH,
Petitioner – Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:15-hc-02128-D)

Submitted:

January 29, 2016

Decided:

February 5, 2016

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Lee Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Lee Smith seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his 28 U.S.C. § 2254 (2012) petition.
not

appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

or

The order is

judge

issues

a

28 U.S.C. § 2253(c)(1)(A) (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

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
Smith has not made the requisite showing.

Accordingly, we deny

a certificate of appealability, deny leave to proceed in forma
pauperis,

and

dismiss

the

appeal.

2

We

further

deny

Smith’s

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petition

for

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initial

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hearing

en

banc, *

and

motions

and

supplemental motions for bail or release pending appeal, for
summary reversal, for leave to file an additional motion for
summary reversal, to stay the mandate, and all other pending
motions.
legal
before

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
DISMISSED

*

The petition for initial hearing en banc was circulated to
the full court. No judge requested a poll under Fed. R. App. P.
35.

3