US v. Dwayne Ferguson, No. 11-6349 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6349 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DWAYNE FERGUSON, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:04-cr-00013-REP-1; 3:09-cv-00700-REP) Submitted: May 19, 2011 Before TRAXLER, Judges. Chief Decided: Judge, and AGEE and May 24, 2011 KEENAN, Circuit Dismissed by unpublished per curiam opinion. Dwayne Ferguson, Appellant Pro Se. Olivia L. Norman, OFFICE OF THE UNITED STATES ATTORNEY, Stephen David Schiller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne Ferguson seeks to appeal the district court s order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp. 2010) motion. justice or The order is not appealable unless a circuit judge issues a certificate 28 U.S.C. § 2253(c)(1) (2006). of appealability. 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). 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 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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. 529 U.S. at 484-85. Slack, We have independently reviewed the record and conclude that Ferguson has not made the requisite showing. Accordingly, we deny Ferguson s motion appealability and dismiss the appeal. for a certificate of 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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