US v. Eric Whitener

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:90-cr-00085-MOC-3,3:14-cv-00600-MOC. Copies to all parties and the district court/agency. [999989576] [16-6818]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6818

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC LAMOUNT WHITENER,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:90-cr-00085-MOC-3; 3:14-cv-00600-MOC)

Submitted:

December 15, 2016

Decided:

December 19, 2016

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Eric Lamount Whitener, Appellant Pro Se.
Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eric Lamount Whitener seeks to appeal the district court’s
order granting his motion for reconsideration of a prior order
dismissing his 28 U.S.C. § 2255 (2012) motion as time-barred;
denying

his

motion

for

recusal;

denying

his

motion

for

reconsideration of a prior order denying his objection to the
Government’s untimely filings; and ultimately denying relief on
his § 2255 motion.
justice

or

judge

The order is not appealable unless a circuit
issues

a

certificate

U.S.C. § 2253(c)(1)(B) (2012).

of

appealability.

28

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).

When the

district court denies relief on the merits, a prisoner satisfies
this

standard

by

demonstrating

that

reasonable

jurists

would

find that the district court’s assessment of the constitutional
claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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 a
debatable claim of the denial of a constitutional right.

Slack,

529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Whitener has not made the requisite showing.
2

Accordingly, we

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deny a certificate of appealability and dismiss the appeal.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3