US v. Gary McDuffie

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:99-cr-00203-LMB-1 Copies to all parties and the district court/agency. [999949535].. [16-6872]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6872

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GARY D’ANGELO MCDUFFIE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:99-cr-00203-LMB-1)

Submitted:

October 13, 2016

Decided:

October 18, 2016

Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.

Dismissed in part, affirmed in part by unpublished per curiam
opinion.

Gary D’Angelo McDuffie, Appellant Pro Se.
Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gary D’Angelo McDuffie seeks to appeal the district court’s
order
motion

denying,
seeking

in

part,

dismissing,

relief,

habeas

and

pursuant

in
to

part,
28

McDuffie’s

U.S.C.

§ 2255

(2012), or in the alternative, for a new trial, as well as the
district court’s orders denying McDuffie’s Fed. R. Civ. P. 59(e)
motion and motion for clarification.

We dismiss in part, and

affirm in part.
As to the district court’s orders denying McDuffie’s § 2255
motion and denying McDuffie’s motion for clarification of the
district court’s order denying habeas relief, these orders are
not

appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

or

judge

issues

a

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
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

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
2

motion

states

a

debatable

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claim of the denial of a constitutional right.

Slack, 529 U.S.

at

the

484-85.

conclude

We

that

have

McDuffie

independently
has

not

reviewed

made

the

record

requisite

and

showing.

Accordingly, we deny a certificate of appealability and dismiss
the appeal, in part.
To the extent McDuffie appeals the district court’s orders
denying the motion for a new trial and Rule 59(e) motion, we
discern no error.

We thus affirm, in part.

See United States

v. McDuffie, No. 1:99-cr-00203-LMB-1 (E.D. Va. Mar. 21, 2016;
Apr. 28, 2016).
facts

and

materials

legal
before

We dispense with oral argument because the
contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.

DISMISSED IN PART;
AFFIRMED IN PART

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