US v. David Phillip

Filing

UNPUBLISHED PER CURIAM OPINION filed denying certificate of appealabilit. Originating case number: 5:12-cr-00236-F-1, 5:15-cv-00435-F. Copies to all parties and the district court. [999999065]. Mailed to: David Phillips. [16-6632]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6632

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID NEIL PHILLIPS, a/k/a Neil Phillips,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:12-cr-00236-F-1; 5:15-cv-00435-F)

Submitted:

November 10, 2016

Decided:

January 6, 2017

Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

David Neil Phillips, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Neil Phillips 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

(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
Phillips 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

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