US v. Larry McDaniel
UNPUBLISHED PER CURIAM OPINION filed. A certificate of appealability is denied. Originating case number: 5:11-cr-00252-D-1, 5:16-cv-00876-D. Copies to all parties and the district court/agency . Mailed to: Larry Max McDaniel. [17-6716]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
LARRY MAX MCDANIEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever, III, Chief District Judge. (5:11-cr-00252-D-1; 5:16-cv-00876D)
Submitted: October 10, 2017
Decided: October 19, 2017
Before GREGORY, Chief Judge, and MOTZ and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Larry Max McDaniel, Appellant Pro Se. William Miller Gilmore, Roberto Francisco
Ramirez, Seth Morgan Wood, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Larry Max McDaniel seeks to appeal the district court’s order dismissing his 28
U.S.C. § 2255 (2012) motions as successive. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B)
(2012); Buck v. Davis, 137 S. Ct. 759, 773 (2017); Jones v. Braxton, 392 F.3d 683, 688
(4th Cir. 2004). 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 McDaniel 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.
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