US v. Timothy Gue

Filing

UNPUBLISHED PER CURIAM OPINION filed denying certificate of appealability. Originating case number: 2:10-cr-00140-MSD-TEM-1, 2:14-cv-00093-MSD. Copies to all parties and the district court. [1000026760]. Mailed to: Timothy Guess. [16-6689]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6689

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY WAYNE GUESS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Mark S. Davis, District
Judge. (2:10-cr-00140-MSD-TEM-1; 2:14-cv-00093-MSD)

Submitted:

February 16, 2017

Before GREGORY, Chief Judge,
HAMILTON, Senior Circuit Judge.

Decided:

DUNCAN,

February 21, 2017

Circuit

Judge,

and

Dismissed by unpublished per curiam opinion.

Timothy Wayne Guess, Appellant Pro Se. Kevin Michael Comstock,
Assistant
United
States
Attorney,
Norfolk,
Virginia,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Timothy Wayne Guess 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
Guess has not made the requisite showing.
a

certificate

dispense

with

of

appealability

oral

argument

and

dismiss

because

2

Accordingly, we deny

the

the

appeal.

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