US v. Marcus Preston


UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 1:08-cr-00342-JFM-1, 1:16-cv-02291-JFM. Copies to all parties and the district court. [1000160190]. [17-6317]

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Appeal: 17-6317 Doc: 11 Filed: 09/22/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6317 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCUS PRESTON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:08-cr-00342-JFM-1; 1:16-cv-02291-JFM) Submitted: August 29, 2017 Decided: September 22, 2017 Before SHEDD, AGEE, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. James Wyda, Federal Public Defender, Baltimore, Maryland; Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Debra Lynn Dwyer, Assistant United States Attorney, Baltimore, Maryland; David Ira Salem, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 17-6317 Doc: 11 Filed: 09/22/2017 Pg: 2 of 2 PER CURIAM: Marcus Preston seeks to appeal the district court’s margin order denying relief on his emergency supplemental 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 Preston has not made the requisite showing. Accordingly, we deny 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 2

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