US v. Larry McDaniel


UNPUBLISHED PER CURIAM OPINION filed. Certificate of appealability is denied. Originating case number: 5:11-cr-00252-D-1, 5:15-cv-00041-D. Copies to all parties and the district court/agency [999916192]. Mailed to: Larry Max McDaniel. [16-6248]

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Appeal: 16-6248 Doc: 9 Filed: 08/24/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6248 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY MAX MCDANIEL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:11-cr-00252-D-1; 5:15-cv-00041-D) Submitted: August 15, 2016 Decided: August 24, 2016 Before GREGORY, Chief Judge, and MOTZ and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Larry Max McDaniel, Appellant Pro Se. William Miller Gilmore, Roberto Francisco Ramirez, Assistant United States Attorneys, Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6248 Doc: 9 Filed: 08/24/2016 Pg: 2 of 3 PER CURIAM: Larry Max McDaniel seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2012). See 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). When prisoner the district court satisfies this jurists would reasonable denies relief standard find by that on the merits, demonstrating the district a that court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief demonstrate on both procedural that the When the district court grounds, dispositive the prisoner procedural must 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 McDaniel 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 Appeal: 16-6248 Doc: 9 contentions Filed: 08/24/2016 are adequately Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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