US v. Richard Smith, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999811232-2], updating certificate of appealability status Originating case number: 2:00-cr-00007-FPS-JES-1 Copies to all parties and the district court/agency. [999941074]. Mailed to: Richard Allen Smith, Jr.. [16-6480]

Appeal: 16-6480

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6480

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ALLEN SMITH, JR., a/k/a Smitty,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Frederick P. Stamp, Jr.,
Senior District Judge. (2:00-cr-00007-FPS-JES-1)

Submitted:

September 29, 2016

Decided:

October 4, 2016

Before SHEDD, KEENAN, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Richard Allen Smith, Jr., Appellant Pro Se.
Stephen Donald
Warner, Assistant United States Attorney, Elkins, West Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Richard

Allen

Smith,

Jr.,

seeks

to

appeal

the

district

court’s order construing Smith’s self-styled “Motion to Compel
the

Release

of

Exculpatory

Documents”

as

a

28

U.S.C.

§ 2255

(2012) motion and denying the motion as successive and without
this court’s authorization.
a

circuit

justice

appealability.

or

The order is not appealable unless
judge

issues

a

certificate

28 U.S.C. § 2253(c)(1)(B) (2012).

of

A certificate

of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2012).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

district

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

both

on

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
is

debatable, and that the motion states a debatable claim of the
denial of a constitutional right.

2

Slack, 529 U.S. at 484-85.

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We have independently reviewed the record and conclude that
Smith has not made the requisite showing. *
Smith’s

motion

to

appoint

counsel,

appealability, and dismiss the appeal.

Accordingly, we deny

deny

a

certificate

of

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

*

Moreover, we reject Smith’s invitation to construe his
motion to compel as a petition for mandamus.

3