US v. Derrick Simmons, No. 14-7376 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7376 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DERRICK SIMMONS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:07-cr-00294-HMH-12; 7:14-cv-02535-HMH) Submitted: February 6, 2015 Before WYNN and Circuit Judge. DIAZ, Circuit Decided: Judges, and February 10, 2015 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Derrick Simmons, Appellant Pro Se. Andrew Burke Moorman, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derrick Simmons seeks to appeal the district court’s orders dismissing as untimely his 28 U.S.C. § 2255 (2012) motion and denying his motion for reconsideration. appealable unless a circuit certificate of appealability. A certificate of justice The orders are not or judge issues a 28 U.S.C. § 2253(c)(1)(B) (2012). appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find U.S. that the claims constitutional 529 by is 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 claim of the denial of a constitutional right. a debatable Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Simmons has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3
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