US v. Marvin Witherspoon, No. 10-7005 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7005 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARVIN HAROLD WITHERSPOON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:04-cr-00005-RLV-DCK-1; 5:10-cv00076-RLV) Submitted: September 30, 2010 Decided: October 12, 2010 Before NIEMEYER, AGEE, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Marvin Harold Witherspoon, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marvin court s order H. Witherspoon dismissing his 2010) motion as successive. a circuit justice appealability. or 28 seeks 28 to appeal U.S.C.A. the § 2255 district (West Supp. The order is not appealable unless judge U.S.C. issues a § 2253(c)(1) certificate (2006); Angelone, 369 F.3d 363, 369 (4th Cir. 2004). Reid of v. A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that 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). denies relief demonstrate on both procedural that the When the district court grounds, dispositive the prisoner procedural ruling must is debatable, and that the motion states a debatable claim of the denial of a constitutional right. We have independently reviewed Slack, 529 U.S. at 484-85. the record and Witherspoon has not made the requisite showing. conclude that Accordingly, we deny a certificate of appealability, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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