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UNPUBLISHED PER CURIAM OPINION filed.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. . Mailed to: D. McKinney. [17-6575]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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;
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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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.
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