US v. Robert Wilkerson, No. 10-7588 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7588 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROBERT MOSES WILKERSON, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (5:96-cr-00167-H-1) Submitted: February 10, 2011 Decided: February 23, 2011 Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Robert Moses Wilkerson, Appellant Pro Se. Steve R. Matheny, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Moses Wilkerson seeks to appeal the district court s order denying his self-styled motion for writ of audit querela. Because Wilkerson s motion was a successive and unauthorized 28 U.S.C.A. § 2255 (West Supp. 2010) motion, see 28 U.S.C. § 2255(h); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997), the district court was obligated to dismiss the motion, see United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003), and the order is not appealable unless a circuit justice or judge issues § 2253(c)(1) a certificate (2006); Reid v. of appealability. 369 Angelone, 28 F.3d U.S.C. 363, 369 (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) (2006). relief on the demonstrating district debatable merits, that court s 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. 2 a debatable Slack, 529 U.S. at 484-85. conclude We that have independently Wilkerson has not reviewed made the the record requisite and 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 the court and argument would not aid the decisional process. DISMISSED 3
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