US v. Derrick Mabry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00275-D-1,5:15-cv-00578-D Copies to all parties and the district court/agency. [999990776]. Mailed to: Derrick Mabry. [16-6925]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6925

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK DONNELL MABRY, a/k/a Mayberry,
Defendant - Appellant.

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-00275-D-1; 5:15-cv-00578-D)

Submitted:

December 8, 2016

Before NIEMEYER
Circuit Judge.

and

KING,

Decided:

Circuit

Judges,

December 20, 2016

and

DAVIS,

Senior

Dismissed in part; affirmed in part by unpublished per curiam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

Derrick Donnell Mabry, Appellant Pro Se. Eric David Goulian,
Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Patrick
Benton Weede, Special Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Derrick Donnell Mabry seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2012) motion and
his 18 U.S.C. § 3582(c)(2) (2012) motion.

After a review of the

record, we dismiss in part and affirm in part.
Regarding his § 2255 motion, this portion of the order is
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

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

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
Mabry has not made the requisite showing.

2

Accordingly, we deny

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a certificate of appealability and dismiss the appeal of the
denial of Mabry’s § 2255 motion.
Turning to Mabry’s § 3582(c)(2) motion, we conclude that
the district court did not abuse its discretion in denying the
motion.

Accordingly, we affirm for the reasons stated by the

district court.
(E.D.N.C.

June

United States v. Mabry, No. 5:12-cr-00275-D-1
28,

2016).

We

dispense

with

oral

argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART

3