US v. David Phillip


UNPUBLISHED PER CURIAM OPINION filed denying certificate of appealabilit.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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Appeal: 16-6632 Doc: 17 Filed: 01/06/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6632 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID NEIL PHILLIPS, a/k/a Neil Phillips,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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6632 Doc: 17 Filed: 01/06/2017 Pg: 2 of 3 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 Appeal: 16-6632 Doc: 17 contentions are Filed: 01/06/2017 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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