David Ellis v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999945493-2] Originating case number: 5:12-cr-00208-D-1,5:15-cv-00268-D Copies to all parties and the district court/agency. [999949437].. [16-6775]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6775

DAVID ELLIS,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:12-cr-00208-D-1; 5:15-cv-00268-D)

Submitted:

October 13, 2016

Decided:

October 18, 2016

Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Ellis, Appellant Pro Se.
Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David

Ellis

seeks

to

appeal

the

district

court’s

denying relief on his 28 U.S.C. § 2255 (2012) motion.

order

The order

is not appealable unless a circuit justice or judge issues a
certificate of appealability.
A

certificate

of

28 U.S.C. § 2253(c)(1)(B) (2012).

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.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

the

claims

constitutional
529

by

is

U.S.

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
Ellis has not made the requisite showing.
a

certificate

of

appealability,

deny

Accordingly, we deny

Ellis’

motion

appointment of counsel, and dismiss the appeal.

for

the

We dispense

with oral argument because the facts and legal contentions are

2

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adequately

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presented

in

the

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materials

before

this

court

and

argument would not aid the decisional process.

DISMISSED

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