US v. Shawn Smith

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00041-CCE-1,1:16-cv-00652-CCE-LPA Copies to all parties and the district court/agency. [1000007260].. [16-7429]

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Appeal: 16-7429 Doc: 7 Filed: 01/20/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7429 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWN DAVON SMITH, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:15-cr-00041-CCE-1; 1:16-cv-00652-CCE-LPA) Submitted: January 17, 2017 Decided: January 20, 2017 Before NIEMEYER, TRAXLER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Shawn Davon Smith, Appellant Pro Se. Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7429 Doc: 7 Filed: 01/20/2017 Pg: 2 of 3 PER CURIAM: Shawn Davon Smith seeks to appeal the district court’s order and judgment adopting the magistrate judge’s report and recommendation and denying relief on his 28 U.S.C. § 2255 (2012) motion. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1)(B) (2012). issue absent “a of 28 U.S.C. A certificate of appealability will not substantial constitutional right.” appealability. showing of the denial 28 U.S.C. § 2253(c)(2) (2012). of a 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 Smith 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 Appeal: 16-7429 Doc: 7 contentions Filed: 01/20/2017 are adequately Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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