US v. David McKinney


UNPUBLISHED PER CURIAM OPINION filed. Motion to appoint/assign counsel denied [1000118863-2], certificate of appealability denied. Originating case number: 2:93-cr-00267-NCT-1, 1:13-cv-00745-NCT-JLW. Copies to all parties and the district court/agency. [1000187911]. Mailed to: D. McKinney. [17-6575]

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Appeal: 17-6575 Doc: 17 Filed: 11/07/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6575 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID ANTHONY MCKINNEY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (2:93-cr-00267-NCT-1; 1:13-cv-00745-NCT-JLW) Submitted: October 27, 2017 Decided: November 7, 2017 Before WILKINSON, NIEMEYER, and SHEDD. Dismissed by unpublished per curiam opinion. David Anthony McKinney, 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 Unpublished opinions are not binding precedent in this circuit.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: 17-6575 Doc: 17 Filed: 11/07/2017 Pg: 2 of 2 PER CURIAM: David Anthony McKinney seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and 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 McKinney has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny the motion for appointment of counsel and 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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