US v. Marvin Wilburn

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--Motion for certificate of appealability is denied (Local Rule 22(a)) [1000037348-2] Originating case number: 3:11-cr-00337-RJC-11,3:16-cv-00571-RJC Copies to all parties and the district court/agency. [1000091257]. Mailed to: Marvin Wilburn. [17-6180]

Appeal: 17-6180

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Filed: 05/31/2017

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-6180

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN RAY WILBURN,
Defendant - Appellant

Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:11-cr-00337-RJC-11; 3:16-cv00571-RJC)

Submitted: May 25, 2017

Decided: May 31, 2017

Before MOTZ, THACKER, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Marvin Ray Wilburn, Appellant Pro Se. Elizabeth Margaret Greenough, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 17-6180

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Filed: 05/31/2017

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PER CURIAM:
Marvin Ray Wilburn seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1)(B) (2012).

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 (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 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 Wilburn has not
made the requisite showing. Accordingly, we deny Wilburn’s motion for a certificate of
appealability and dismiss the appeal. 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

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